IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 Crl.MC.No. 2253 of 2008() ------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.22513/2005 Dated 02/08/2005 CC.2073/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... PETITIONER: ------------ DR. DIVAKAR SHETTY, S/O. KANTHANNA SHETTY, “RUKMINI NIVAS”, LOWER BENDUR, MANGALORE-575 002. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS: ------------- 1. M/S BELL HOUSE ASSOCIATES PVT. LTD., PALARIVATTOM, PALARIVATTOM P.O., ERNAKULAM DISTRICT, KOCHI-24. REP. BY ITS MANAGING DIRECTOR. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY P.P. SRI. C.M. KAMAPPU. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2253 of 2008 ------------------------------------------------- Dated this the 17th day of June, 2008 ORDER The petitioner faces indictment in a prosecution under Sec.138 of the Negotiable Instruments Act. As he did not enter appearance, a bailable warrant of arrest appears to have issued against him earlier. He came to this Court with a writ petition and by Annexure-A1 judgment, another Bench of this Court issued a direction, in the interests of justice, under Art.226 of the Constitution. The petitioner was directed to appear before the learned Magistrate on 4/8/05. 2. The petitioner has not so far entered appearance. He has reasons to urge. According to him, the case was not called on the Bench all these days and ultimately on 5/6/08 when the matter came up for hearing, the petitioner and the counsel were absent as there was a harthal called on that day and the Crl.M.C. No. 2253 of 2008 -: 2 :- movement had become virtually impossible. The learned Magistrate has issued a bailable warrant against the petitioner and the case now stands posted to 26/6/08. 3. The petitioner is willing to surrender before the learned Magistrate and seek regular bail. But he apprehends that when he surrenders, his application may not be considered by the learned Magistrate on merits, in accordance with law and expeditiously. He apprehends that the benefit of Annexure-A1 judgment passed earlier in the writ petition filed by him may not be extended to him because of the gap in appearance. 4. It is 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 Magistrate would not consider the petitioner's application for regular bail on merits, in accordance with law and expeditiously. No special or specific directions appear to be necessary. Every court must do the same. Sufficient general directions on this aspect have already been issued in the decision reported in Alice George v. Deputy Superintendent of Police (2003 (1) KLT 339). 5. In the result, this Crl.M.C. is dismissed; but with the Crl.M.C. No. 2253 of 2008 -: 3 :- observation that if the petitioner surrenders before the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously – on the date of surrender itself. 6. 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 26/6/08 – the date of next posting. On or before that day, the petitioner must appear before the learned Magistrate and seek bail. Needless to say, the petitioner shall be entitled to bring to the notice of the learned Magistrate Annexure-A1 judgment passed by another Bench of this Court in his favour earlier. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 2253 of 2008 -: 4 :-