Kerala High Court
Kammaliparambath Santhakumari vs State Of Kerala on 16 December, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935
Crl.Rev.Pet.No. 696 of 2003 (A)
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AGAINST THE JUDGMENT IN CRA.18/1999 of III ADDL. SESSIONS JUDGE, KOZHIKODE-
DATED 16-12-2002
AGAINST THE ORDER IN MC.63/1998 of J.M.F.C.-I,KOZHIKODE DATED 11-12-1998
REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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KAMMALIPARAMBATH SANTHAKUMARI,
W/O. SREENARAYANAN, KAMBILI PARAMBATH, WEST HILL
KOZHIKODE.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/COMPLAINANT & STATE:
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1. STATE OF KERALA, REP.PUBLIC PROSECUTOR
HIGH COURT OF KERALA.
2. SUB INSPECTOR OF POLICE NADAKKAVU
POLICE STATION, KOZHIKODE.
BY PUBLIC PROSECUTOR SMT. P. MAYA.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
05-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B. KEMAL PASHA, J
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Crl.R.P.No. 696 of 2003
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Dated this the 5th day of April, 2013
O R D E R
Petitioner herein is the counter petitioner in M.C. No.63 of 1998 in Crime No.200 of 1995 of the Nadakkavu Police Station on whom a penalty of Rs.1 lakh was imposed by the Judicial First Class Magistrate's Court-I, Kozhikode on forfeiture of her bond. The petitioner has challenged the said order before the Sessions Court, Kozhikode in Crl.A.No.18 of 1999. The learned Additional Sessions Judge confirmed the order dated 11.12.1998 passed by the learned Magistrate, and dismissed the appeal.
2. In the above crime, an old ambassador car Crl.R.P.No.696 of 2003 -:2:- involved was released to the interim custody of one Anitha Babu Rao under Section 451 Cr.P.C. on condition that she should produce the vehicle in the same state and condition, as and when ordered. The present petitioner was the surety who executed a bond of Rs.1 lakh along with the said Anitha Babu Rao who also executed such a bond, for the same. Subsequently, the crime was referred by the Nadakkavu Police and the refer report was accepted by the learned Magistrate. The accused persons, against whom the crime was registered, and from whose possession the car was seized, approached the Judicial First Class Magistrate-I, Kozhikode demanding the release of the vehicle to their custody under Section 452 Cr.P.C. When the said request came, the learned Judicial First Class Magistrate-I, Kozhikode issued notice to Anitha Babu Rao who had taken the vehicle Crl.R.P.No.696 of 2003 -:3:- on interim custody under Section 451 Cr.P.C., calling upon her to produce the vehicle. By assigning one reason or the other, the said Anitha Babu Rao evaded the production of the car, and subsequently filed a petition as CMP 825 of 1998 seeking further time to produce the car. Even then the car was not produced. Consequently, M.C.46 of 1998 was registered against Anitha Babu Rao after forfeiting the bond executed by her. Finally, on 16.5.1998 she produced the car which was not in a running condition and which had not even the number plate affixed on it, by towing the vehicle to the court premises. As she had violated the bond conditions, a penalty of Rs.1 lakh was imposed on Anitha Babu Rao, by the learned Magistrate in M.C.46 of 1998.
3. A show cause notice was issued to the present petitioner who was the surety, on forfeiture of her Crl.R.P.No.696 of 2003 -:4:- bond, and M.C. 63 of 1998 was registered. As there was no justifiable explanation from the part of the petitioner, the learned Magistrate imposed a penalty of Rs.1 lakh on the petitioner herein. The same was challenged in appeal. The learned Additional Sessions Judge has passed a detailed judgment in the matter and found that the petitioner is liable to pay a penalty of Rs.1 lakh.
4. The learned counsel for the petitioner has attempted to canvass an argument that the learned Judicial First Class Magistrate-I, Kozhikode as well as the learned Additional Sessions Judge in appeal ought to have considered the fact that the petition under Section 452 Cr.P.C. filed by the then accused in Crime No.200 of 1995 would not be maintainable and therefore, the learned Magistrate ought not to have called upon Anitha Babu Rao to produce the vehicle. Crl.R.P.No.696 of 2003 -:5:- According to the learned counsel for the petitioner, the present petitioner is also entitled to take up the contention that the petition under Section 452 Cr.P.C. would not be maintainable and therefore, the learned Magistrate ought not to have forfeited the bond executed by the petitioner.
5. The said arguments forwarded by the learned counsel for the petitioner has no legal basis at all. When a bond was executed by the petitioner in favour of the Judicial First Class Magistrate's Court-I, Kozhikode taking up the liability to produce the vehicle as and when required, in the same state and condition, the petitioner is not entitled to take up such a contention. The petitioner cannot challenge the maintainability of the proceedings before the court below. It was in a petition under Section 451 Cr.P.C. the car was released to the interim custody of Anitha Crl.R.P.No.696 of 2003 -:6:- Babu Rao for which the petitioner had executed the bond in favour of the Judicial First Class Magistrate's Court-I, Kozhikode. Whether it was a petition which was maintainable or not, on which the Judicial First Class Magistrate's Court-I, Kozhikode had demanded the production of the vehicle before the court, the petitioner was duty bound to see that the vehicle was produced before that court in the same state and condition as agreed to by her through the bond. As the vehicle was not so produced, the bond was rightly forfeited by the learned Magistrate. Of course, the wording in the order that fine is imposed, is not correct. The learned Magistrate would have intended to use the term 'fine' instead of 'penalty'. Whatever it is, the amount imposed by the Judicial First Class Magistrate's Court-I, Kozhikode on the petitioner can only be treated as penalty under Section 446 Cr.P.C. Crl.R.P.No.696 of 2003 -:7:-
6. The learned counsel for the petitioner has pointed out that it was a very old ambassador car which could never fetch an amount of Rs.1 lakh as its market price even at that time. A penalty of Rs.1 lakh was imposed on Anitha Babu Rao and also the same amount has been imposed as penalty on the present petitioner. Considering the facts and circumstances of this case and the fact that an amount of Rs.1 lakh was imposed as penalty on Anitha Babu Rao also, this court is satisfied that the penalty of Rs.1 lakh imposed on the petitioner can be reduced to Rs.30,000/-, and such a penalty will meet the interest of justice in this case.
In the result, the impugned order is modified by reducing the penalty to Rs.30,000/- on the petitioner. The said amount of penalty shall be recovered as if it were fine imposed under the Code of Criminal Crl.R.P.No.696 of 2003 -:8:- Procedure, 1973. If the said amount of penalty is not paid or cannot be recovered, the petitioner shall undergo imprisonment in civil jail, for six months.
Sd/- B. KEMAL PASHA, JUDGE ul/-
[True copy] P.S. to Judge.
Crl.R.P.No.696 of 2003 -:9:- B. KEMAL PASHA, J
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O R D E R
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5th day of April, 2013