Cherichi Muthalib vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the accused in S.C. No. 771/08 now pending as L.P. No. 41/09 before Assistant Sessions Court, Payyannur seeking issuance of certain directions under Section 482 of Code of Criminal Procedure.

It is alleged in the petition that petitioner is the accused in Crime No. 80/02 of Pazhayangadi Police Station alleging commission of the offences under Section 55(a) of the Abkari Act. After investigation, final report was filed and thereafter, it was committed to the Court of Sessions and taken on file as S.C. No. 771/08 and thereafter, made over to Assistant Sessions Court, Payyannur for disposal and it is pending before that court. He could not appear before the court below as he went abroad in connection with his employment. So, the case was transferred to register of long pending cases and warrant is pending against him. The offence against him will not lie and if he surrenders, he apprehends that he will be remanded to custody without considering his bail application as well. So, the petitioner has no other remedy except to approach this court seeking the following reliefs:

"i) To direct disposal of the entire proceedings in Crime No. 80/2002 (LPC No. 41/2009) pending before the Assistant Sessions Court, Payyannur; within a time frame.

In the alternative

ii) To direct the Assistant Sessions Court, Payyannur to enlarge the petitioner on bail on his surrender and to expedite the adjudication in L.P.C. No. 41/2009;

iii) to issue such other orders or directions as may be prayed for and that this Hon''ble Court may deem fit on the facts and circumstances of the case."

When the application came up for hearing today on admission, the Counsel for the petitioner submitted that he is not pressing the first prayer and he will agitate the same before the court below. So, the first prayer is dismissed as not pressed.

Heard the Counsel for the petitioner and the learned Public Prosecutor.

The Counsel for the petitioner submitted that the apprehension of the petitioner is that if he surrenders before court below, he will be remanded to custody and his bail application will not be considered on the same day. Unless a direction is given from this court, the lower court will not consider the same.

The application was opposed by the learned Public Prosecutor on the ground that the petitioner is an absconding accused.

It is an admitted fact that the petitioner has been arrayed as accused in Crime No. 80/02 of Pazhayangadi Police Station and after investigation and committal, it is pending before Assistant Sessions Court, Payyannur as S.C. No. 771/08. Since he did not appear, the case was transferred to register of long pending cases and now pending as L.P.C. No. 41/09 and non bailable warrant is pending against him now. This court cannot direct the court below to release the petitioner on bail as it will amount to usurping the power of that court. The apprehension of the petitioner that, if he surrenders before the court below and moves for bail, he will be remanded and his application will not be considered on the date of filing itself is not genuine and without any basis. This Court has time and again observed in several petitions of this nature that the Presiding Officers of the criminal courts are duty bound to dispose of the bail applications, if any, filed by the accused persons on their surrender on the date of filing of the application itself unless compelling circumstances warrant postponement of the same to a future date. So, in fact, there is no necessity to issue any direction as sought for in the petition. However, considering the apprehension expressed in the petition, this Court feels that the petition can be disposed of as follows:

If the petitioner surrenders before the Assistant Sessions Court, Payyannur and moves for recalling the warrant and for releasing him on bail in L.P. No. 41/2009 (Crime No. 80/2002 of Pazhayangadi Police Station) now pending before that court, then, the learned Magistrate is directed to consider and dispose of the bail application after hearing the Assistant Public Prosecutor of that court in accordance with law as far as possible on the date of filing of the application itself.

With the above direction and observation, the petition is disposed of.

Office is directed to communicate this order to the concerned court immediately.