Kerala High Court
Baburaj vs State Of Kerala on 1 September, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 9TH DAY OF JULY 2018 / 18TH ASHADHA, 1940
CRL.A.No. 1655 of 2004
AGAINST THE ORDER IN MC 7/2004 OF ADDITIONAL SESSIONS JUDGE (FAST TRACK
COURT I), TRIVANDRUM DATED 01.09.2004
APPELLANTS/COUNTER PETITIONERS 2 & 3:
1 BABURAJ, S/O MANIYAMMA, LEKSHAM VEEDU
(NO.378), MANGATTUKONAM, ALLINERA WARD, AIROORPPARA
VILLAGE, KATTAYIKONAM, THIRUVANANTHAPURAM TALUK.
2 ALPHONSE, D/O. SARASI,
MADATHIL MELEPUTHEN VEEDU, MANGATTUKONAM,
ALLINERA WARD, AIROORPPARA VILLAGE, KATTAYIKONAM,
THIRUVANANTHAPURAM TALUK.
BY ADVS.SRI.PIRAPPANCODE V.S.SUDHEER
SMT. MEGHA
RESPONDENT/PETITIONER:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL, HIGH COURT
BUILNGS, ERNAKULAM, (CIRCLE INSPECTOR OF POLICE, MEDICAL
COLLEGE, THIRUVANANTHAPURAM.)
BY SMT. SHEEBA K K, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
NAB
MARY JOSEPH, J
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Crl.Appeal No. 1655 of 2004
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Dated this the 09th day of July, 2018
JUDGMENT
This appeal is directed against the order dated 01.09.2004, passed by the Additional Sessions Judge (Fast Track Court I), (for short, 'the court below') Thiruvananthapuram in MC No.07 of 2004 in S.C. No.298 of 1997.
2. Appellants stood as sureties for the first accused in S.C.No.298 of 1997. He was charge sheeted by the Circle Inspector of Police, Medical College Police Station along with six others for the offences punishable under Sections 302, 307, 120(b), 108, 109 r/w Section 34 of Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act, 1908.
3. The court below, framed charge against the accused for the offences for which he was charge sheeted by the police. The charge framed when read over and explained to him was denied by the accused. Accordingly the case was posted for trial. Summons have been issued to the witnesses of the prosecution for procuring their presence for the examination scheduled to be held from 21.06.2004 till 25.06.2004. The first accused did not appear before the court on Crl.Appeal No.1655 of 2004 2 21.06.2004. His counsel filed a memo stating that his engagement for the accused is given up. The witness of the prosecution appeared before the court on that day, but due to abscondance of the accused, the examination could not be held. On subsequent dates scheduled for trial, the witnesses of the prosecution appeared but their examination could not be conducted for want of presence of the first accused. Thereafter the bail bond of the accused was forfeited and Non Bailable Warrant (for short 'NBW') was issued against him and notices were issued against the sureties. The NBW was returned unexecuted for the reason of non-location of the accused. The sureties who received the notices, appeared before the court on 11.08.2004. They filed application seeking time for production of the accused and the court granted time till 18.08.2004. The accused was not produced by the sureties on 18.08.2004 and thereupon miscellaneous case was directed to be registered by the court against the accused and his sureties under Section 446 Cr.P.C. The case was adjourned to 23.08.2004. On 23.08.2004, the sureties appeared before the court, but they did not produce the accused and therefore case was adjourned to 01.09.2004. On 01.09.2004 also, the sureties did not produce accused and therefore the court below imposed a penalty of Rs.10,000/- (Rupees Ten thousand only) to the accused and a penalty of Rs.7,500/-(Rupees seven thousand five hundred only) to each of the sureties and thus allowed Crl.Appeal No.1655 of 2004 3 the balance amount of the bail bond remitted in their favour. The court has also directed the recovery of the amount under Section 421 Cr.P.C in case of default in payment of penalty by the sureties, and to undergo imprisonment in civil jail for a period of six months each. Aggrieved by the said order, the sureties of the first accused have approached this court in the captioned appeal on several grounds as stated in the appeal memorandum.
4. It is contended by Smt. Megha, the learned counsel for the appellants that the court below is highly erred in imposing a penalty of Rs.7500/- against each of the appellants. According to her, the appellant have not been granted sufficient and adequate opportunity to produce the first accused. According to her 21 days' time granted by the court below was inadequate for producing the accused by the appellants. It is also contended by the learned counsel that while passing the impugned order the court below has violated the mandatory requirements under Section 446 Cr.P.C. The further contention advanced by the learned counsel was that discretion has not been exercised by the court below in a proper manner while imposing the penalty of Rs.7500/- against each of the appellants. Another contention advanced by the learned counsel was that the appellants have taken their level best to locate the first accused and to produce him before the court below, but since the first accused was absconding, they did not succeed in their effort. According Crl.Appeal No.1655 of 2004 4 to the learned counsel, such being the circumstances, the court below ought not to have imposed Rs.7500/- as penalty upon each of the appellants. According to her, due to circumstances beyond the control of the appellants that the accused could not be located and produced by them. The learned counsel has also urged for showing some sympathy to the appellants in the matter of imposition of penalty on account of their poor financial condition.
5. On going through the impugned order, this court could not see any error on the part of the court below in the matter of imposition of penalty. This Court could not notice any impropriety in the matter of exercise of discretion by the court below while remitting Rs.2500/- from the bond amount of Rs.10,000/-. Therefore, procedural formalities as contemplated by Section 446 Cr.P.C are strictly complied with in the matter.
6. Therefore, there is absolutely no reason, to set aside the order under challenge.
7. However, this court is inclined to show indulgence in the matter on the basis of the submission made by the learned counsel that the appellants are people of poor economical status and striving hard to raise money to pay the penalty. Therefore, the penalty of Rs.7500/- ordered to be paid by each of the appellants is modified and reduced to Rs.3000/-. Each of the appellants are directed by this judgment to pay Crl.Appeal No.1655 of 2004 5 Rs.3000/-(Rupees three thousand only) as penalty. The penalty is liable to be paid in the court below within one week from this day. In case of default, the consequences as ordered by the court below in the impugned order shall follow. With the above directions, the Crl. Appeal stands allowed.
sd/-
MARY JOSEPH JUDGE //True copy// P A to Judge NAB/09.07.2018