IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.MC.No. 2180 of 2009 --------------------------------------- ORDER IN LP 9/2007 IN CC.524/2006 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... PETITIONER/ACCUSED: M.P.ALAVI, S/O.USSANKUTTY, MULLATHAPADATH VEEDU, ATTASSERY, THRIKKADERI, OTTAPALAM, PALAKKAD DIST. BY ADV. SRI.BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT: 1. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. SABU JOSEPH, POOTHIYODU, PUNNAPRA, ALAPPUZHA DISTRICT. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2180 of 2009 -------------------------- ORDER Petitioner is the accused in C.C.No.524/2006 on the file of Chief Judicial Magistrate's Court, Alappuzha, now pending as L.P.No.9/2007. Non Bailable Warrant is pending against the petitioner. Learned Magistrate took cognizance of the offence under Section 138 of Negotiable Instruments on the complaint filed by the second respondent. This petition is filed under Section 482 of Code of Criminal Procedure contending that learned Magistrate did not comply with the mandatory provisions of Section 202(1) of Code of Criminal Procedure. When cognizance was taken, petitioner was working abroad and he is a native of Ottapalam and in any case steps taken under Sections 82 and 83 of Code of Criminal Procedure was also not proper. CRMC 2180/09 2 2. Though petitioner challenged the order taking cognizance, order is not produced and petitioner has not disclosed when cognizance was taken so as to consider whether learned Magistrate had to comply with the amended provisions of Section 202, on the date of taking cognizance. Hence, challenge against taking cognizance by the Magistrate cannot be considered in this petition. 3. Learned counsel submitted that as the case is included in the long pending register and a non bailable warrant is pending, normally, an absconding accused will not be granted bail on the date of his surrender and therefore, petitioner has no other go than to approach this Court to get the non bailable warrant issued cancelled. 4. When an accused surrenders and files an application for bail, Magistrate is expected to pass orders on the application without delay. When that accused is charged with an offence, which is bailable, I find no reason for the Magistrate to CRMC 2180/09 3 deny the bail, even though he was absconding. 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 Magistrate will not act in accordance with law. In such circumstances, no further direction is warranted. Petition is dismissed. Dismissal of the petition will not disentitle the petitioner to challenge the cognizance taken in appropriate proceedings. 6th July, 2009 (M.Sasidharan Nambiar, Judge) tkv