Kerala High Court
K.J.Seabastian vs State Of Kerala on 28 February, 2022
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943
CRL.A NO. 176 OF 2022
AGAINST THE ORDER IN MC 11/2021 IN SC 499/2018 OF SPECIAL COURT UNDER
POCSO ACT, MANJERI
APPELLANTS/RESPONDENTS:
1 K.J.SEABASTIAN
AGED 68 YEARS
S/O. JOSEPH,KAKKALLIL HOUSE,KAIPALLI P.O.,
THEKKEKKARA, KOTTAYAM, PIN - 686571
2 FRANCIS JOSEPH
AGED 62 YEARS
S/O. JOSEPH,MARIDAM, KADAPLAMATTOM,
KIDANGOOR, ELACKAD, KOTTAYAM, PIN - 686571
BY ADVS.ANZIL SALIM
LAL K.JOSEPH
P.MURALEEDHARAN (THURAVOOR)
T.A.LUXY
SURESH SUKUMAR
SNITA ROSE BENJAMIN
KOYA ARAFA MIRAGE
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031
2 THE STATION HOUSE OFFICER
MALAPPURAM POLICE STATION,FEROKH PALAKKAD HIGHWAY,
NH-213, ANNUNNIPARAMBU,UP HILL, MALAPPURAM, PIN - 676505
SR.PP - SMT. SREEJA V.
Crl.A.176/2022 2
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.176/2022 3
JUDGMENT
This is an appeal filed under Section 449 of the Code of Criminal Procedure by the sureties of the 5th accused in S.C. 499/2018. The appellants were the counter petitioners in M.C.11/2021 in S.C.1330/2021 on the file of the Special Court for the trial of POCSO Act cases, Manjeri. The 5th accused was released on executing a bond for Rs.50,000/- with two solvent sureties each for the like sum; appellants as sureties undertook to produce the accused before the Court as and when necessary. Thereafter, the 5th accused went absconding and thus proceeding under Section 446 of the Cr.P.C. was initiated and after forfeiting the bond, show cause notices were issued to both the sureties, after registering M.C. 11/2021, asking as to why the bond amount shall not be realised from them; but they did not turn up. Thereafter, by the impugned order dated 24.11.2021, the said bond amount of Rs.50,000/- each was imposed on them as penalty and, aggrieved by the same, they have preferred this appeal.
2. According to the learned counsel for the appellants, they are farmers and senior citizens, on the date of the proceedings the 1 st Crl.A.176/2022 4 appellant was in hospital; relying on Annexure-A1 discharge summary he said that the 1st appellant was admitted in hospital on 13.12.2021, he underwent a surgery on 14.12.2021 for inguinal hernia on both scrotum and was discharged on 24.12.2021. Relying on Annexure-A2 receipt, the learned counsel submits that the 5th accused had surrendered before the Court on 03.02.2022 and on that day itself the appellants were made to pay Rs.40,000/-, a portion of the penalty imposed on them. According to the learned counsel, the appellants failed to turn up owing to the illness of the 1st appellant. Moreover, on consideration that the 5th accused has already surrendered before the Court, the impugned order is sought to be set aside.
3. I heard the learned counsel for the petitioner and also the learned Public Prosecutor.
4. The learned counsel has submitted that the case stands refiled as S.C.1330/2021 from S.C.499/2018. After hearing counsel on both sides, even though the 1st appellant was undergoing treatment in hospital, reasons for the failure of the 2 nd appellant for not responding the show cause notice cannot be understood. Whatever it may be, taking into Crl.A.176/2022 5 account the fact that the 1st appellant was admitted in hospital which is evidently supported by Annexure-A1 discharge summary and since the 5th accused has already surrendered before the Court, I feel that leniency can be shown and remission can be granted. Therefore, the appeal is allowed to the extent of granting remission of Rs.40,000/- (Rupees Forty thousand only) each, limiting the penalty to Rs.10,000/- (Rupees Ten thousand only) each. As a sum of Rs.40,000/- has already been remitted, they are entitled to get the refund of Rs.10,000/- each.
The Criminal Appeal is disposed of as above.
Sd/-
K.HARIPAL JUDGE okb/28.2.22 //True copy// P.S. to Judge Crl.A.176/2022 6 APPENDIX OF CRL.A 176/2022 PETITIONER ANNEXURES Annexure1 ANNEXURE A1 - TRUE COPY OF THE DISCHARGE SUMMARY OF 1ST APPELLANT ISSUED BY MARIAN MEDICAL CENTRE PALA - IN CRL.MA TO ACCEPT ADDITIONAL DOCUMENT Annexure2 ANNEXURE A1(A) - TRUE COPY OF THE IP DISCHARGE BILL OF 1ST APPELLANT ISSUED BY MARIAN MEDICAL CENTRE PALA - IN CRL.MA TO ACCEPT ADDITIONAL DOCUMENT Annexure3 ANNEXURE A2 - TRUE COPY OF THE ACKNOWLEDGMENT OF RECEIPT OF MONEY BEARING NO.01959 ISSUED BY THE SPECIAL COURT POCSO MANJERI PAID BY K.J. SEBASTIAN AND FRANCIS JOSEPH-IN CRL.MA TO ACCEPT ADDITIONAL DOCUMENT ANNEXURE A2(a) TRUE COPY OF THE CORRECTED RECEIPT NO.01959 DT.3.2.2022 EVIDENCING PAYMENT BEFORE THE OFFICE OF THE SPECIAL COURT POCSO MANJERI