G. KRISHNA KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS are accused (A1 and A2) in C.C. No. 229/2007 on the file of the Chief Judicial Magistrate, Kollam. They are being prosecuted for offences punishable under Sections 420, 465, 466, 468 and 471 r/w Section 34 IPC on a report filed by the Sub Inspector of Police, Kollam East Police Station. After appearance of the petitioners and while the trial was in progress with some of the prosecution witnesses examined, according to the learned counsel for the petitioners, the case was referred for settlement. Since the petitioners did not receive further intimation from their counsel, they did not appear before the court which, thereupon, resulted in issue of non bailable warrants against them, which are stated to be pending execution. The learned counsel for the petitioners seeks for issue of direction to the Magistrate to enlarge them on bail on their surrender before the court. Some arguments were also made by the counsel with reference to the imputations levelled against them in the case to contend that none of the offences alleged would lie against them and at best what is involved is only a breach of promise covered by an agreement of sale, for which, according to the counsel, the remedy of the de facto complainant would lie only before the civil court. The de facto complainant has filed a suit for recovery of money based on the agreement of sale is the further submission of the counsel to seek interference of the court for issue of direction as indicated earlier. Perusing the Annexures produced in the petition with reference to the submissions made by the learned counsel for the petitioners, I am unable to accept the submissions made for quashing the proceedings. The case even looking on the number assigned is seen pending on the file of the court atleast for the last five years. Prosecution evidence has already commenced and some of the witnesses were examined. Plea now made that since there was a reference for settlement petitioners did not appear before the court as they did not get communication of the posting from the counsel is totally unexceptable. The relief canvassed, to direct the Magistrate to enlarge the petitioners on bail on their surrender at any rate cannot be issued. However, having regard to the fact that non bailable warrants are pending against the petitioners in the case in which they had earlier appeared and taken bail, the Magistrate is directed to consider their bail application, if any, moved preferably, on the date of their surrender, if there is no exceptional circumstance to do so, and in case the petitioners surrender within a period of two weeks from the date of this order and advance notice on their bail application has been given to the Assistant Public Prosecutor.

(2.) I make it clear that the direction given as above shall not be construed as placing any impediment to the Magistrate in deciding the application for bail, if any, moved by the petitioners on its merits, in accordance with law. It is further clarified that the proceedings, if any, initiated against the petitioners on forfeiture of the bond executed by them earlier under Section 446 of the Code, can be continued by the Magistrate and appropriate orders passed thereof in accordance with law.