Kerala High Court
Haridasan vs State Of Kerala on 21 March, 2016
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 6TH DAY OF MAY 2016/16TH VAISAKHA, 1938
CRL.A.No. 432 of 2016 ()
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(AGAINST THE ORDER IN M.C.NO.13/2016 IN S.C.NO.1052/2014 OF THE
ADDITIONAL SESSIONS JUDGE-V, KOLLAM DATED 21.3.2016)
APPELLANTS/COUNTER PETITIONERS:-:
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1. HARIDASAN
S/O.KUNJIRAMAN,
MULAKCKA KIZHAKKATHIL,
UDAYAMARTHANDAPURAM,
KOLLAM EAST VILLAGE, KOLLAM.
2. YAMUNA
W/O.MURUKAN, PULIVILAKIZHAKKATHIL,
MUNDAKKAL, KOLLAM.
BY ADV. SRI.B.MOHANLAL
BY ADV.SMT. PREETHA P.S.
RESPONDENT/ACCUSED & STATE:-:
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STATE OF KERALA
REPRESENTED BY THE STATION HOUSE OFFICER,
KOLLAM EAST POLICE STATION,
KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.BINDHU GOPINATH
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
06-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. RAMAKRISHNAN, J.
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Crl.A.No.432 of 2016
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Dated this the 6th day of May, 2016.
JUDGMENT
The appellants are counter petitioners 2 and 3 in M.C.No.13 of 2016 in SC.No.1052 of 2014 on the file of the Additional Sessions Court-V, Kollam. They stood as sureties for one of the accused in S.C.No.1052 of 2014 on executing a bond for Rs.25,000/-. At the time when the case was committed to the sessions court, the accused for whom the appellants stood as sureties, did not appear. So the learned Sessions Judge initiated proceedings against the appellants under section 446 of the Code of Criminal Procedure and though notice was served on them, they could not produce the accused and submit any explanation to the non production of the accused. So the learned Sessions Judge imposed the entire bond amount of Rs.25,000/- each as penalty against the appellants. Aggrieved by the same, the present appeal has been preferred by the appellants, counter petitioners 2 and 3 in the above proceedings.
2. Heard smt. Preetha P.S, learned counsel representing Sri. Mohan Lal, counsel for the appellants and Smt. Bindhu Gopinath, learned Public Prosecutor appearing for the State.
3. Counsel for the appellants submitted that the petitioners are coolie workers and without taking steps to get the presence of the Crl.A.No.432 of 2016 2 accused, the court below was not justified in initiating the proceedings against the appellants. Further, the penalty imposed is excessive. The accused is working abroad and non production is beyond the capacity of the appellants.
4. Learned Public Prosecutor submitted that there is no illegality committed by the court below in passing the impugned order.
5. It is an admitted fact that the present appellants stood as sureties for releasing one of the accused in S.C.No.1052 of 2014 on bail before the committal court when the case was committed to the sessions court under section 209 of the Code of Criminal Procedure. It is also an admitted fact that the accused for whom the appellants stood as sureties did not appear in spite of warrant issued. Though notice has been issued to the petitioners, they could not produce the accused as well. So the court below was perfectly justified in forfeiting the bond and initiating proceedings against the appellants under section 446(1) of the Code. The dictum laid down in the decision reported in Usman v. State of Kerala (2005 (4) KLT 345) is no longer good in law in view of the Division Bench decision of this Court in Thundichi v. State of Kerala (2009 (4) KLT 67). The Division Bench has held that once the accused did not appear on the date on which he was directed to appear, then the bond executed by the Crl.A.No.432 of 2016 3 sureties for that purpose automatically stand forfeited and they can be proceeded against for realization of the amount mentioned in the bond under section 446(1) of the Code. In this case, though the appellants appeared, they could not produce the accused.
6. The counsel for the appellants submitted that the accused for whom they stood as sureties is now working abroad and they are not in a position to produce him and prayed for leniency. It cannot be said that non production of the accused by the sureties is willful or deliberate, but is is beyond their control. Considering the pathetic condition of the sureties in such circumstances, this court feels that some leniency can be shown in imposing penalty and imposing a penalty of Rs.7,500/- each will be sufficient and that will meet the ends of justice. So while conforming the order passed by the court below forfeiting the bond and initiating proceedings against the appellants under section 446(1) of the Code, the penalty imposed by the court below namely Rs.25,000/- each is set aside and the same is modified as follows.
The appellants are directed to pay a penalty of Rs.7500/- each and remission is granted in respect of the balance amount. The petitioners are granted two months time to deposit the amount, If the amount is not paid or deposited or could not be realized from Crl.A.No.432 of 2016 4 them, then they are directed to be detained in civil prison for a period of 15 days each.
With the above modification of the penalty imposed by the court below, the appeal is allowed in part and disposed of accordingly.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge