Kerala High Court
Shaji Subramanian Aged 54 Years vs State Of Kerala on 26 March, 2014
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936
OP(Crl.).No. 66 of 2014 (Q)
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C.P.NO. 34/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II,
ERNAKULAM
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PETITIONER:
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SHAJI SUBRAMANIAN AGED 54 YEARS,
S/O.SUBRAMANIAN, POLAKULATH HOUSE, PERUMPILLY,
NARAKKAL P O, ERNAKUALM-682 505
BY ADV. SRI.DENIZEN KOMATH
RESPONDENTS:
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STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
CENTRAL POLICE STATION,
ERNAKULAM THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY GOVERNMENT PLEADER SMT.S.HYMA
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 26-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
OP(Crl.).No. 66 of 2014 (Q)
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APPENDIX
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PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE PHOTOCOPY OF THE NOTICE OF PROCLAMATION REQUIRING
APPEARANCE OF ACCUSED UNDER SECTION 82 OF THE CRIMINAL
PROCEDURE CODE BEFORE THE JFMC - II,ERNAKULAM.
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
K. Ramakrishnan, J.
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O.P.(Criminal) No.66 of 2014
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Dated this, the 26th day of March, 2014.
J U D G M E N T
This is an application filed by the petitioner who is the accused in C.P.No.34/2013 (Crime No.231/10 of Central Police Station, Ernakulam) on the file of the Judicial First Class Magistrate Court II, Ernakulam, to issue a direction to the magistrate to consider the bail application under Article 227 of the Constitution of India.
2. It is alleged in the petition that petitioner who is the accused in Crime No.231/10 of Central Police Station, Ernakulam on the file of the Judicial First Class Magistrate Court II, Ernakulam, alleging offence under Sections 55(1) of Abkari Act. The petitioner is a driver by profession eking out his livelihood by plying his Taxi Car in a private stand. The allegation mentioned in the petition was that, without serving summons or warrant on the Petitioner, a notice of proclamation under Section 82 of the Code of Criminal Procedure Code is issued by the court below for the reason that the petitioner has concealed himself to avoid service of warrant. Without serving any summons or informing regarding O.P.(Criminal) No.66 of 2014 : 2 : the proceedings before the court below, the petitioner is forced to face proclamation proceedings. Aggrieved by the impugned issuance of Exhibit P1 for no fault of the petitioner and only due to failure of respondent to ensure proper summons to the petitioner, the petitioner is constrained to prefer this Original Petition seeking the following relief:
"i) To call for the entire records leading to the issuance of Exhibit P1 proclamation notice, and issue any appropriate order or direction to quash the same.
ii) Direct the Judicial First Class Magistrate Court-II Ernakulam to consider and pass orders on application for bail and request to recall warrant pending against this Petitioner, on the same date of moving such applications."
3. Considering the nature of relief claimed in the petition, this court felt that this can be disposed of after hearing the Counsel for the petitioner and the learned Public Prosecutor.
4. The Counsel for the petitioner submitted that, if the petitioner surrenders before the court below, his bail application will not be considered and he will be remanded to custody. Unless a direction is given, the magistrate will not pass orders in the bail application on the same date of O.P.(Criminal) No.66 of 2014 : 3 : surrender itself. The application was opposed by the Public Prosecutor.
5. It is an admitted fact that the petitioner was an accused in Crime No. 231/10 of Central Police Station, Ernakulam on the file of the Judicial First Class Magistrate Court II, Ernakulam and after investigation, final report is filed and it was taken on file by the learned magistrate as C.P.No.34/2013. According to the petitioner, petitioner received notice of proclamation under Section 82 of the Code of Criminal Procedure without serving summons or warrant, he is forced to face proclamation proceedings. It is at this stage that he came to this court seeking a direction. He can very well surrender before the court below and convince that court that he is not served with notice in the proceedings and apply for recalling the warrant.
6. The apprehension of the petitioner that, if he surrenders before the court below and seeks for bail, his bail application will not be considered by the court on the same day is not genuine because, courts are expected to dispose of the bail application on the date of filing of the application itself as far as possible unless there are compelling circumstances O.P.(Criminal) No.66 of 2014 : 4 : warrant the court to postpone the disposal of the bail application to a future date. So, in fact, there is no necessity to issue any direction as sought for in the petition. However, considering the apprehension expressed in the petition, this court feels that the petition can be disposed of as follows:
If the petitioner surrenders before the Judicial First Class Magistrate Court II, Ernakulam and moves for recalling the warrant and release him on bail in C.P.No. 34/2013 (Crime No.231/10 of Central Police Station, Ernakulam), which is now pending before that court, then, the learned magistrate is directed to consider and dispose of those applications filed by the petitioner after hearing the Assistant Public Prosecutor of that court in accordance with law as far as possible on the date of filing of the application itself. With the above direction and observation, the petition is disposed of. Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge