Kerala High Court
Karthikeyan vs State Of Kerala on 17 December, 2014
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936
CRL.A.No. 678 of 2011 ( )
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AGAINST THE ORDER IN MC No.30/2005 IN SC 308/2004 of ADDL. SESSIONS
COURT (ADHOC-1), KOLLAM
APPELLANT(S)/APPELLANTS/COUNTER PETITIONERS:
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1. KARTHIKEYAN, S/O. RAGHAVAN,
PUTHENTHARAYIL KIZHAKKATHIL, THAZHAVA NORTH MURI
THAZHAVA VILLAGE, KOLLAM DISTRICT.
2. VISWAMBHARAN, S/O. NANU,
VILLYKULATHU VEEDU, PRAKKULAM CHERRY
THRIKKARUVA VILLAGE, KOLLAM DISTRICT.
BY ADVS.SRI. K.SIJU
SRI.PRATHEESH.P
RESPONDENT(S)/PETITIONER:
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STATE OF KERALA, REPRESENTED BY
THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.GITHESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
vdv
ALEXANDER THOMAS, J.
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Crl.Appeal No.678 of 2011
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Dated this the 17th day of December, 2014
JUDGMENT
This is an appeal instituted under Section 449 of the Code of Criminal Procedure to impugn the order dated 17.05.2005 of the Court of Additional Sessions Judge (Adhoc-I), Kollam rendered in M.C No.30 of 2005 arising out of S.C No.308 of 2004. The appellants 1 and 2 herein are counter petitioners 2 and 3 in the above said M.C proceedings before the court below. The appellants herein stood as sureties to the 2nd accused in S.C No.308 of 2004 on the file of the court below, wherein the accused was alleged to have committed the offences punishable under Sections 323 and 307 r/w Section 34 of Indian Penal Code. Since the 2nd accused, who was working in gulf, did not appear before the court below the bond amount of Rs.50,000/- each in respect of the surety bonds was ordered to be forfeited and the appellants were directed to remit Rs.10,000/- each as penalty and in case of default to remit, and if the amounts were found irrecoverable, then the appellants were ordered to be sentenced to undergo imprisonment for 6 months in Civil Prison. It is this Crl.Appeal No.678 of 2011 2 order that is under challenge in this Crl.Appeal.
2. Heard Sri.Siju Kalmalasanan, learned counsel for the appellants in this case and the learned Public Prosecutor appearing for the respondent State of Kerala.
3. It is urged by the appellant that the court below ought to have issued notice calling upon the sureties to pay the penalty or to show cause why they shall not pay penalty before passing of the impugned order as laid down by this Court in the case Geetha Vs State of Kerala reported in 2006(3) KLT 960 . It is held in paragraph 3 of the decision rendered by this Court in Geetha's case that recording of grounds of such proof is a mandatory requirement without which the court cannot proceed any further under Section 446 of the Code of Criminal Procedure. It is further held in paragraph 5 and 6 of that decision that the court has to issue notice calling upon the sureties to pay penalty or to show cause why they shall not pay penalty and not to show cause why bond should not be forfeited. It is accordingly held therein that as per Section 446 of the Code of Criminal Procedure, once it is proved to the satisfaction of the court and the bond has been forfeited, the court shall record Crl.Appeal No.678 of 2011 3 "grounds of such proof" and thereafter, call up on the sureties to pay the penalty or to show cause why it shall not be paid. That recording of such facts and issuance of show cause notice for that purpose is mandatory before passing an order of penalty.
4. It is also urged by the appellant that the court below has failed to state the grounds of satisfaction to the effect that bond has been forfeited and the court below has failed to follow the procedure mentioned in Section 446 of the Code of Criminal Procedure and that the impugned order has been passed in violation of the principles laid down by this Court in the case Usman Vs State of Kerala reported in 200594) KLT 348.
5. On a perusal of the impugned order it appears that the principles laid down by this court in Geetha's case reported in 2006(3) KLT 960 has not been adhered to in its correct legal perspective. Moreover, it is mandated in Section 446(2) of the Code of Criminal Procedure that if sufficient cause is not shown and the penalty is not paid, then the court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. It is only after following the procedure contemplated under Section 446(2) that the proviso under Crl.Appeal No.678 of 2011 4 Section 446 could be resorted to for ordering that where such penalty is not paid 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. The procedure for the levy of fine is contemplated by the provisions contained in Section 421 of the Code of Criminal Procedure. It appears from a mere reading of the impugned order that these provisions in Section 446(2) r/w Section 421 of the Code of Criminal Procedure has not been adhered to while issuing the impugned direction as per the impugned order regarding the imposition of the term for civil imprisonment and that too for the maximum period of six months. Even if the court was convinced about the issue regarding the imposition of civil imprisonment, the court was under the bounded duty to consider whether the term of imprisonment ordered is proportionate and commensurate with the gravity of the situation occasioned in the case. No such application of mind is seen from the impugned order. Moreover, the learned counsel for the appellant submits that the presence of the accused was later secured and that he Crl.Appeal No.678 of 2011 5 secured bail from the court below concerned.
In view of the above mentioned aspects, this Court is convinced that the impugned order is not sustainable. In this view of the matter, the impugned order is set aside and the Crl.Appeal stands allowed as indicated above.
Sd/-
ALEXANDER THOMAS, JUDGE
vdv //True Copy// P.A to Judge