IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 Crl.MC.No. 3165 of 2008() ------------------------- AGAINST THE ORDER IN CRMP 1648/2008 IN CC.65/2003 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER/ACCUSED: --------------------------------- CHANDY THOMAS, AGED 61, SON OF LATE MR.CHANDY RESIDING AT PATHIYAMOOLA HOUSE, PALLIPURAM P.O. CHERTHALA, ALLAPUZHA DIST. PIN 688 541. BY ADV. SRI.SHAJI CHIRAYATH SMT.JIJI M. VARKEY RESPONDENTS/STATE & COMPLAINANT: --------------------------------------------------------- 1. STATE OF KERALA, REP. BY ITS DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA ERNAKULAM. 2. P.C. JOSEPH, PATTERIPURACKAL, 40/1126 POST BOX NO.1196, T.D. ROAD ERNAKULAM PIN 682 011. R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3165 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. He was enlarged on bail. The case stood posted to 27.5.2008. On that day, the petitioner was absent. His counsel submitted an application to excuse the absence of the petitioner. In that application the learned counsel for the petitioner had unfortunately omitted to affix his signature. There are other cases also, in which the petitioner was accused and those cases were also posted to the same day. On account of the omission on the part of the counsel to sign the petition, it is submitted that the petition was dismissed. According to the counsel for the petitioner, the omission to affix the signature was purely inadvertent. The counsel was present in court. He was willing to cure the defect. But ignoring the request for permission to cure the defect, the learned Magistrate has rejected the application and issued a non-bailable warrant against the petitioner. The bail bond has also been cancelled, it is submitted. Crl.M.C.No. 3165 of 2008 2 2. According to the petitioner he is absolutely innocent. His absence was not wilful or deliberate, but on account of reasons beyond his control. He is willing to surrender before the learned Magistrate, but he apprehends that his application for bail may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. 3. It is certainly for the petitioner to appear before the learned Magistrate and explain to the learned Magistrate the circumstances under which he could not earlier appear before the learned Magistrate. I have no reason to assume that the learned Sessions Magistrate would not consider the application for bail to be filed by the petitioner when he surrenders before the learned Magistrate on merits, in accordance with law and expeditiously. Every court must do the same. No special or specific direction appears to be necessary. Sufficient general directions have already been issued by this Court in the decision in Alice George v. Dy.S.P. of Police (2003 (1) KLT 339). 4. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Crl.M.C.No. 3165 of 2008 3 Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously - on the date of surrender itself. 5. In the peculiar facts and circumstances of this case, there shall be a direction that the warrant of arrest issued against the petitioner shall not be executed till 27.8.2008. On or before that date, the petitioner shall appear before the learned Magistrate and seek regular bail. If the learned Magistrate does not permit the petitioner to be enlarged on bail accepting the same sureties, he must give further time to the petitioner to produce fresh sureties. (R. BASANT) Judge tm