K.P. Varghese vs Baby Samyuktha and State of Kerala

Thomas P. Joseph, J.—Notice to the first respondent is dispensed with in view of the order I propose to pass in this proceeding.

Petitioner is accused in C.C. No. 185 of 2007 of the Court of learned Judicial First Class Magistrate, Kayamkulam facing trial for offence punishable u/s 138 of the Negotiable Instruments Act (for short, "the Act"). Originally, he was released on bail and later, it happened that on 23.10.2010 he could not appear before learned Magistrate. Thereon, an advocate represented "no instruction". Learned Magistrate cancelled the bail and issued non bailable warrant to the petitioner. At that stage petitioner approached this Court with O.P (Crl). No. 36 of 2011 and this Court directed learned Magistrate to consider the application for bail if presented by the petitioner and pass orders as early as possible. Petitioner says that since he was not able to arrange sureties he could not appear before learned Magistrate. Petitioner says that he is prepared to execute self bond and deposit the bond amount before learned Magistrate. Petitioner seeks a direction to the learned Magistrate to release him on bail on such conditions.

Learned Counsel submitted that it is on account of inability of petitioner to arrange sureties that he is constrained to come to this Court with a relief of this nature. I have heard learned Public Prosecutor also.

Reading of Sections 441 and 445 of the Code of Criminal Procedure (for short, "the Code"), it is not as if the Magistrate is without power to release an offender on self bond and instead of execution of bond with sureties, to release him on deposit of the bond amount. But, primarily that is a matter which learned Magistrate has to decide for, it is within his discretion to decide whether an accused must be released on self bond and instead of insisting on sureties he should be directed to deposit the bond amount. That discretion has to be exercised in the proper manner having regard to the nature of the offence involved. While disposing of O.P (Crl). No. 36 of 2011 it was represented before me by the learned Counsel that petitioner was appearing in the trial court except on the crucial day when his bail bond was cancelled. I must bear in mind that offence involved is only u/s 138 of the Act. In these circumstances, it is certainly a matter which learned Magistrate has to decide whether petitioner could be released on self bond on his depositing the bond amount as may be directed by the learned Magistrate.

This petition is disposed of with the following directions:

(i) If any application for bail is preferred learned Magistrate shall dispose of the same as early as possible.

(ii) Petitioner shall appear before the learned Magistrate within three weeks from this day.

(iii) Non bailable warrant issued to the petitioner will stand in abeyance during the said period of three weeks or till petitioner appears before the learned Magistrate, whichever is earlier.