IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 Crl.MC.No. 3380 of 2009 --------------------------------------- CC.220/2007 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... PETITIONERS/ACCUSED NOS.2,7,10,12 & 14: 1. ZACHARIAS, AGED 39 YEARS, S/O. K.J.SKARIAH, KUTHIRAVELI HOUSE, MARANGOLI KARAYIL, NJEEZHOOR VILLAGE. 2. SAVIO DOMINIC, AGED 39 YEARS, S/O. DOMINIC, PAMPOORICKAL HOUSE, CHIRAKKADAVU KARA, CHIRAKKADAVU VILLAGE. 3. SHAJI, AGED 41 YEARS, S/O. THOMAS, PAMPOORICKAL HOUSE, CHIRAKKADAVU KARA, CHIRAKKADAVU VILLAGE. 4. ANAND MATHEW, AGED 33 YEARS, S/O.MATHEW, CHERUVALLY HOUSE, ANTHINADU BHAGOM, BHARANANGANAM KARA, BHARANANGANAM VILLAGE. 5. RAJESH V.THOMAS, AGED 34 YEARS, S/O. THOMAS, VAZHIPLACKAL HOUSE, BHARANANGANAM KARA, BHARANANGANAM VILLAGE. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION, KOTTAYAM. (THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3380 of 2009 -------------------------- ORDER Petitioners are accused 2, 7, 10, 12 and 14 in C.C.No.220/2007 on the file of Judicial First Class Magistrate's Court-I, Kottayam. The case was posted after recording the evidence, after issuing summons to the charge witnesses, to 6.10.2009. On that day, only accused 1, 5, 6, 8 and 9 were present and accused 2, 7, 10, 12 and 14 were absent. CWs 2, 4 and 5 were also present. Learned Magistrate could not proceed with recording of the evidence, as the counsel appearing for the petitioners submitted that accused are disputing their identity. In such circumstances, learned Magistrate recorded that due to non-co-operation of the defence side, the case was adjourned and cancelled the bail of the petitioners and issued non bailable warrants. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A1 order and CRMC 3380/09 2 for a direction to the Magistrate to recall the non bailable warrants. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners submitted that if petitioners surrender before the learned Magistrate, they will be remanded as sufficient indications were given by the learned Magistrate on 6.10.2009 and in such circumstances, the order cancelling the bail is to be quashed. 4. When the case was posted for recording evidence and summons were issued to the witnesses to be examined on the side of the prosecution and the accused are disputing their identity, necessarily they should have been present before the court. When the prosecution submitted that identity of the accused is relevant and defence counsel submitted that accused are disputing their identity, learned Magistrate was justified in cancelling the bail of the petitioners as it is due to their non-co-operation the case had to be CRMC 3380/09 3 adjourned and the witnesses had to be directed to appear on a later day after procuring the presence of the petitioners. In view of that matter, I find no reason to quash the order as sought for. 5. If absence of the petitioners was for valid and sufficient reasons, they are at liberty to approach the learned Magistrate to recall the non bailable warrants and the learned Magistrate, if satisfied, to recall the non bailable warrants. If petitioners surrender and file applications for bail, learned Magistrate is expected to pass orders in the applications for bail without delay. I find no reason to believe that Magistrate is unaware of the provisions of law or the decisions of this Court or the Apex Court or that the Magistrate will not act in accordance with law. Hence, no direction is warranted. Petition is disposed. 23rd October, 2009 (M.Sasidharan Nambiar, Judge) tkv