Madras High Court
Manikandan vs The State Represented By on 13 September, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/09/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.A.(MD).No.468 of 2007 1.Manikandan 2.Raj ... Appellants The State represented by The Sub Inspector of Police, Courtallam Police Station, Tirunelveli District. ... Respondent Prayer Appeal filed under Section 449(ii)of the Code of Criminal Procedure, as against the order passed in M.C.No.5 of 2007 in S.C.No.82 of 1997 on the file of the learned Sessions Judge (Mahila Court), Tirunelveli, dated 30.08.2007. !For Appellants ... Mr.T.S.Mohammed Mohideen ^For Respondent ... Mr.Siva.Ayyappan Government Advocate (Crl.Side) :JUDGMENT
This Criminal Appeal is focussed as against the order passed in M.C.No.5 of 2007 in S.C.No.82 of 1997 on the file of the learned Sessions Judge (Mahila Court), Tirunelveli, dated 30.08.2007.
2. Heard the learned Counsel for the appellants. Originally, this petition has been filed to quash the proceedings in M.C.No.5 of 2007 in S.C.No.82 of 1997 on the file of the learned Sessions Judge (Mahila Court), Tirunelveli, dated 30.08.2007. Subsequently, the learned Counsel for the appellants understanding that under Section 449 Cr.P.C., the appeal itself would lie, he filed a memo to the effect and accordingly, the Criminal Original Petition is converted into appeal.
3. A glaring injustice resulted in view of the ex facie and prima facie illegal order passed by the learned Sessions Judge (Mahila Court), Tirunelveli.
4. A re'sume' of facts absolutely necessary and germane for the disposal of this appeal would run thus:
The Sessions Case No.82 of 1997 is pending on the file of the learned Sessions Judge (Mahila Court), Tirunelveli. It appears, A.3 did not appear before the Court and thereby he jumped bail, whereupon the learned Judge was pleased to initiate forfeiture proceedings by invoking Section 446 Cr.P.C. Ultimately, it appears, the learned Sessions Judge imposed a fine of Rs.10,000/- (Rupees Ten Thousand only) on each of the appellants in commensurate with the bail bond and immediately on the same day, due to the non-payment of fine, they were sent to Central Jail, Palayamkottai and not to the civil jail as contemplated under the proviso to sub-section (2) to Section 446 Cr.P.C. No steps have also been taken by the learned Judge for recovering the fine amount in the way known to law, but straight away after imposing the fine amounts, on the same day, he committed them to undergo imprisonment for three months in total disregard to the express provisions of law.
5. Being aggrieved by and dissatisfied with, the method and manner in which the learned Sessions Judge dealt with the matter, the present Criminal appeal is focussed.
6. The above narration of facts would speak by itself as to how the learned Judge throwing to winds the mandates as incorporated under Section 446 Cr.P.C., simply dealt with the matter. No doubt, jumping bail on the part of the accused is a very serious matter, but that would not in any way warrant the learned Judge, Mahila Court to resort to such extreme step of ignoring the procedures contemplated under the law.
7. At this juncture, I would like to extract hereunder sub-section (2) to Section 446 Cr.P.C:
"(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:
[Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.]"
(emphasis supplied)
8. A mere reading of the sub-section extracted supra would amply make it clear that opportunity should be given at the first instance for the surety or sureties to furnish explanation and thereupon, if the Judge is not satisfied, he could impose fine and after imposing fine, due opportunity should be given to pay the fine. Even if fine is not paid, he should resort to recover it by issuing distress warrant. If the fine could not be recovered, then, thereafter only, for reasons to be recorded relating to such improbability of recovering the fine, the Court could impose imprisonment not exceeding six months to be underwent in civil jail by the surety concerned. But, here, the facts would show that the learned Sessions Judge without adhering to the aforesaid procedures, simply sentenced the appellants to undergo three months simple imprisonment and commit them to Central Jail, Palayamkottai, where there is no civil prison at all.
9. In the result, the order passed in M.C.No.5 of 2007 in S.C.No.82 of 1997 on the file of the learned Sessions Judge (Mahila Court), Tirunelveli, dated 30.08.2007, is liable to be set aside and accordingly, by allowing this Criminal Appeal, the same is set aside and the appellants are ordered to be set at liberty forthwith unless their custody is required in some other case. The Registry is directed to inform the jail authorities by wire at the cost of the appellants to release them at once.
10. The learned Sessions Judge(Mahila Court), Tirunelveli, shall take appropriate legal steps as highlighted supra strictly in accordance with law as against the appellants and report compliance.
11. The Registry shall call for explanation from the learned Sessions Judge (Mahila Court), Tirunelveli, for his aforesaid lapse.
rsb To
1.The Sub Inspector of Police, Courtallam Police Station, Tirunelveli District.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.