Manoj vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the fifth accused in C.P.No.9 of 2011 on the files of the Judicial First Class Magistrate Court-II, Thiruvananthapuram to issue directions to the concerned Magistrate to consider his bail application u/s 482 of the Criminal Procedure Code.

It is alleged in the petition that the petitioner was arrayed as fifth accused in Crime No. 523 of 2010 of Thumba police station of Thiruvananthapuram District along with others which was registered on the basis of the statement given by the defacto complainant alleging offences under Sections 143, 147, 148, 149, 341, 323, 324 and 308 of Indian Penal Code and after investigation final report was filed and it was taken on file as CP.No.9 of 2011 on the files of the Judicial First Class Magistrate Court,-II, Thiruvananthapuram. Since the petitioner was in abroad in connection with his employment, he could not appear. So non bailable warrant has been issued against him. Though he is prepared to surrender he apprehends that in view of the pendency of the non bailable warrant, his bail application will not be considered and he will be remanded to custody. So the petitioner has no other remedy except to approach this Court seeking the following relief:-

to direct the court below to permit the petitioner to surrender before it on a date fixed by this Hon''ble Court, and be direct the court below to consider and pass orders on the bail application on the same day itself.

Considering the nature of relief claimed in the petition this Court felt that the petition can be disposed of at the admission stage itself, after hearing the counsel for the petitioner and the learned Public Prosecutor.

Counsel for the petitioner submitted that since non bailable warrant is pending against him, normally the learned Magistrate will not consider the bail application on the date of filing of the application itself and he will be remanded to custody. Unless a direction is given from this court, the Magistrate will not consider the application on the date of filing of the application itself.

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

It is an admitted fact that the petitioner was arrayed as fifth accused in Crime No. 523 of 2010 of Thumba police station of Thiruvananthapuram District and after investigation, final report was filed and it is now pending as CP.No.9 of 2011before the Judicial first Class Magistrate Court-II, Thiruvananthapuram It is also an admitted fact that since the petitioner did not appear, the Court has issued non bailable warrant and it is pending against him.

The apprehension of the petitioner that if he surrenders before the court below he will be remanded to custody without considering his bail application on the date of filing of the application itself in view of the non bailable warrant pending against him is without any basis and not genuine as well. This Court has time and again in several matters of this nature observed that the presiding officers of the Criminal courts are duty bound to consider and dispose of the bail applications, if any, filed by the accused on their surrender, as far as possible on the date of filing of the application itself unless compelling circumstances warrant postponement of the same a future date. So in fact, there is no necessity to issue any direction as such as sought in the petition. However, considering the apprehension raised by the petitioner in the petition, this Court feels that the petition can be disposed of as follows:-

If the petitioner surrenders before the Judicial First Class Magistrate Court-II, Thiruvananthapuram and moves for recalling the non bailable warrant issued against him and release him on bail in CP.No.9 of 2011 (Crime No. 523 of 2010 of Thumba Police Station) pending before that Court, then the learned Magistrate is directed to consider and dispose of those applications after hearing Assistant Public Prosecutor of that Court as far as possible on the date of filing of the application itself in accordance with law.

With the above directions and observations the petition is disposed of. Office is directed to communicate this order to the concerned Court immediately.