IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Crl.MC.No. 2725 of 2009 --------------------------------------- CC.333/2009 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... PETITIONER/ACCUSED: ANZAR, S/O.MAJEED, AGED 32, KALATHIL HOUSE, THONDANKULANGARA WARD, ALAPPUZHA. BY ADV. SRI.GEORGE MATHEW RESPONDENTS/DE-FACTO COMPLAINANT & STATE: 1. STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, ALAPPUZHA NORTH POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUDHEER, S/O.SHERIEF, THYPARAMBIL HOUSE, NEAR KAICHOONDI JUNCTION, ALAPPUZHA. PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2725 of 2009 -------------------------- ORDER Petitioner is the accused in C.C.No.333/2009 on the file of Chief Judicial Magistrate's Court, Alappuzha, taken cognizance for the offence under Section 420 of Indian Penal Code upon Annexure-A3 final report. Crime No.15/2008 of Alappuzha North Police station was registered on receipt of Annexure-A1 complaint filed by the second respondent before Chief Judicial Magistrate's Court, Alappuzha and sent for investigation under Section 156(3) of Code of Criminal Procedure, based on which Annexure-A2 FIR was prepared. This petition is filed under Section 482 of Code of Criminal Procedure contending that ingredients of the offence is not made out and therefore, learned Magistrate should not have taken cognizance of the offence and as cognizance was taken, Annexure-A1 complaint, Annexure-A3 final report and the CRMC 2725/09 2 cognizance taken are to be quashed. 2. Learned counsel appearing for the petitioner submitted that though petitioner has raised a contention that ingredients of the offence is not made out, petitioner may be permitted to raise the said contention before the learned Magistrate and seek an order of discharge. It is submitted that second respondent is not in India and petitioner, because of the case, is not in a position to leave India and if that happens, he will lose his employment. Learned counsel appearing for the petitioner also submitted that as a non bailable warrant is pending against the petitioner, learned Magistrate may be directed to consider the application for bail on the date of surrender. 3. For non-availability of the complainant, if the learned Magistrate cannot dispose the case within a time frame, petitioner is entitled to seek permission of the court to leave India so as to join his employment in Gulf countries. Therefore, CRMC 2725/09 3 on that ground, I find no reasonable cause for an apprehension. 4. When an accused surrenders and files an application for bail, Magistrate is expected to pass orders on the application without delay. I find no reason to believe that the Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that Magistrate will not act in accordance with law. Hence, no direction is warranted. Petition is disposed granting liberty to the petitioner to surrender and seek an order of discharge from the learned Magistrate, raising all the contentions raised herein. 20th October, 2009 (M.Sasidharan Nambiar, Judge) tkv