The right to bail cannot be denied solely based on the issuance of a non-bailable warrant in bailable offenses.

ORDER

Petitioner is the accused in C.C.No.1150/2020 on the files of the Judicial First Class Magistrate Court I, Kochi for the offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860. Due to non- appearance of the petitioner, a non-bailable warrant has been issued against the petitioner and proceedings under Sections 82 and 83 of the Cr.P.C. have also been initiated.

2. According to the petitioner, he was working in Belgium and hence he could not appear before the court. It was also submitted that petitioner had not even received the summons in the case. Despite non- service of summons, for reasons unknown to the petitioner, a warrant has been issued against him and on coming to know about the warrant, he has volunteered to come down to Kerala and participate in the trial. It is however apprehended that the Magistrate will consider the application for recall of warrant only after remanding the petitioner, since non-bailable warrant has already been issued.

3. This Court is coming across repeated instances where parties are apprehending remand to custody, merely for the reason that non- bailable warrants have been issued. This apprehension is being expressed by the petitioners even in bailable offences as in the present case.

4. In this context, it is necessary to remind the learned Magistrates that his Court had inOseela Abdul Khader and Another Vs. State of Kerala and others [ 2012 4 KLT 535 ], held that ‘the fact that a non-bailable warrant has been issued against her in the case, whatever be the justification for such an order by itself is not at all a ground to incarcerate her. The offence imputed against her under Section12(1)(b) of the Act contemplates punishment of imprisonment for a term which may extend to two years or with fine which may extend to Rs.5,000/- or with both. As the offence falls under Clause II of the 1st Schedule to the Code with punishment for less than three years, it is bailable. The learned Magistrate evidently has not taken note that where the offence is bailable the accused if he offers to give bail has to be released pending his trial, and there is no question of the police ofÏcer or Court exercising any discretion in granting bail. Only choice is of demanding security with surety. An exception thereto can be made against an accused proceeded of bailable offence only in a situation covered by sub-section (2) of S.439 of the Code. The Magistrate has issued a non-bailable warrant against such accused and proceeded with coercive steps under Section 82 and Section 83 of the Code against such accused, is no ground to refuse bail when the offence imputed is bailable and she is entitled to be released on bail as of right’.

5. In view of the above dictum, the apprehension expressed by the petitioner is without any basis. There is no reason to assume that the learned Magistrate will remand the petitioner to custody on the date of his appearance, even after filing of an application for recall of warrant and bail.

6. Therefore, this Crl.M.C. is disposed of, expressing that the apprehension of the petitioner is without any basis and also that in the event of any application for recall of warrant and bail application being filed by the petitioner on or before 05.04.2022 the learned Magistrate shall consider and pass appropriate orders on the said application, bearing in mind the decision in 2012 4 KLT 535 and recall the warrant granted to the petitioner on the same day itself.

This criminal miscellaneous case is allowed.

sd/

BECHU KURIAN THOMAS JUDGE jm/

APPENDIX OF CRL.MC 2536/2023 PETITIONER ANNEXURES Annexure-A1 THE TRUE COPY OF THE FIR DATED 31/10/2019 IN CRIME NO.1063/2019 OF HARBOUR POLICE STATION, ERNAKULAM DISTRICT.

Annexure-A2 THE TRUE COPY OF THE FINAL REPORT DATED

24/2/2020 IN CRIME NO.1063/2019 OF HARBOUR POLICE STATION, ERNAKULAM DISTRICT