IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 Crl.MC.No. 2969 of 2009() ----------------------------------- C.M.P.6629/2009 IN CC.19/2007 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER/ACCUSED NO.3 ----------------------------------------- HAREESH KUMAR, DETECTIVE INSPECTOR, CBCID, PALAKKAD, RESIDING AT P.M.G. VIKAS BHAVAN, THIRUVANANTHAPURAM. BY ADV. MR.ALAN PAPALI RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA (CRIME NO.481/CR/KLM/O5 IN CRIME NO.171/2003 OF KOLLAM EAST POLICE STATION,DETECTIVE INSPECTOR, CBCID, KOLLAM) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2969 OF 2009 ------------------------------------------ Dated 14th September 2009 O R D E R Petitioner is the third accused in C.C.19/2007 on the file of Chief Judicial Magistrate, Kollam. As is clear from Annexure-III order sheet, the case was originally pending before Chief Judicial Magistrate and the summons issued to the petitioner was returned, as he was abroad. Case was posted to 2/4/2007. As he was abroad, it is stated that he is absconding. On 2/4/2007 case was transferred to Judicial First Class Magistrate-II, Kollam. Annexure-III order sheet shows that as directed by this court, Chief Judicial Magistrate re-called the order transferring the case to Judicial First Class Magistrate on 31/5/2007 and issued notice to all the parties and posted the case to 4/6/2007. It is seen that on that day petitioner was recorded as absconding and on 21/6/2007 accused 1,2 and 4 were present and petition to re-call non bailable warrant issued against accused 1,2 and 4 were re-called and CRMC 2969/09 2 accused were granted bail. It is seen that non bailable warrant was repeated as against the petitioner. According to the petitioner, he was not aware of the proceedings as he was serving as a member of Civilian police officer of United Nations Mission, Kosovo. Annexure-II certificate issued by the Contingent Commander shows that petitioner, a civilian police officer was employed by the United Nations Mission, Kosovo. Petitioner filed C.M.P.6629/2009 to re-call the warrant under Sub Section 2 of Section 70 of Code of Criminal Procedure. Learned Chief Judicial Magistrate dismissed the petition under Annexure-V order, holding that petitioner did not surrender before the court and as the case is pending, the warrant cannot be re-called. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-V order and to permit the petitioner to appear through a pleader. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that Sub Section 2 of Section 70 of Code of Criminal Procedure does not mandate that an accused must CRMC 2969/09 3 surrender to get a non bailable warrant cancelled and therefore, dismissal of the application to re-call the warrant is unjustified. Learned counsel submitted that petitioner being a C.I of police C.B.C.I.D, apprehending that if he surrenders, he would be remanded filed an application without surrendering and in such circumstances, dismissal of the application was not justified. 4. Annexure-V order shows that petition was dismissed for the sole reason that petitioner did not surrender. When case of the petitioner is that he was not served with a summons and still non bailable warrant was issued, while he was serving as civilian officer in the United Nations Mission, Kosovo, as evidenced by Annexure-III order sheet, learned Magistrate was not justified in dismissing the application for the sole reason that petitioner did not surrender before the court. Before issuing non bailable warrant, Magistrate has to satisfy that summons was personally served on the accused. Annexure-III order sheet does not show that summons was served. It also shows that other accused were already enlarged on bail. CRMC 2969/09 4 5. In such circumstances, Annexure-V order is quashed. C.M.P.6629/2009 is remitted to Chief Judicial Magistrate to pass appropriate order in accordance with law. Petitioner is granted liberty to surrender before the learned Magistrate and to file an application to release him on bail. If an application is filed for trial it should be disposed along with C.M.P.6629/2009. In view of the order releasing all the other accused on bail and considering the fact that final report has already been filed and taken cognizance, I find no reason to believe that petitioner will not be enlarged on bail on his surrender. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.