Kerala High Court
Agnus vs State Of Kerala on 12 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 12TH DAY OF JULY 2024 / 21ST ASHADHA, 1946
CRL.A NO. 302 OF 2005
AGAINST THE ORDER DATED 25.02.2004 IN MC NO.4 OF 2004 IN SC
1575/2003 OF SUSSESSIONS JUDGE, KOLLAM
APPELLANT/COUNTER PETITIONERS 1-3:
1 AGNUS,
D/O MARY,
KAVINTAYYATHU VEEDU,
THEKKUMBAGOM MURI,
THEKKUMBAGOM VILLAGE.
2 VERONICA,
KAVINTAYYATHU VEEDU,
THEKKUMBAGOM MURI,
THEKKUMBAGOM VILLAGE.
3 AGUSTIN,
KAVINTAYYATHU VEEDU,
THEKKUMBAGOM MURI,
THEKKUMBAGOM VILLAGE.
BY ADVS.
SRI.JOHN BRITTO
SRI.C.A.RAJEEV
RESPONDENT/COMPLAINANT:
STATE OF KERALA
CR.NO.181/99 OF THEKKUMBAGOM POLICE STATION,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR -SR.G.P.VIPIN NARAYAN
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
10.07.2024, THE COURT ON 12.07.2024 DELIVERED THE FOLLOWING:
2
Crl.Appeal No.302 of 2005
C.S.SUDHA, J.
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Crl.Appeal No.302 of 2005
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Dated this the 12th day of July 2024
JUDGMENT
This is an appeal under Section 449 of Cr.P.C. filed by the three counter petitioners against the order dated 25/02/2004 in M.C.No.4/2004 in S.C.No.1575/2003 on the file of the Court of Session, Kollam.
2. The first appellant was the sole accused in S.C.No.1575/2003 and the second and the third appellants, the sureties. The first appellant who was charge sheeted by the Sub Inspector of Police, Thekkumbhagom in Crime no.181/1999 alleging the commission of the offences punishable under Sections 55(a) and (i) of the Abkari Act, absconded during the course of the trial. The second and third appellants failed to 3 Crl.Appeal No.302 of 2005 appear before the court despite service of notice on them or produce the accused before the trial court. In such circumstances, the bond was forfeited, and the appellants were directed to remit an amount of ₹5,000/- each as penalty and in default of payment, they were held liable to undergo imprisonment for a period of six months in the civil prison. Thus, distress warrant was issued against all the appellants. Aggrieved, the counter petitioners in M.C.No.4/2004 have come up in appeal.
3. In the appeal memorandum, it is alleged that the failure to produce the first appellant/accused in the case was never willful or deliberate. The first appellant/accused was unaware of the posting date and hence the reason for her absence. The second and the third appellants had never received any notice from the court requiring the production of the accused before the court. They were away at Mangalore in connection with their avocation. The appellants are fishermen, unable to remit the amount imposed on them on account of their financial incapacity. 4 Crl.Appeal No.302 of 2005 The penalty imposed on them is harsh and excessive.
3.1. During the course of arguments, it was submitted by the learned counsel for the appellants relying on the decision of a learned Single Judge of this Court in In re Chief Judicial Magistrate, 1990 (1) KLT 762, that the proviso to Section 446(2) Cr.P.C. is not applicable to the accused. A person bound as surety alone is liable in a proceeding for recovery of the penalty to imprisonment in civil jail. The proviso in terms does not apply to the accused as in the case of a surety. Per contra, it was submitted by the learned Public Prosecutor that there is a mistaken general impression that the accused cannot be held liable and that it is only the surety who can be held liable for the bond amount. In support of his argument, he referred to Section 446, 446A Cr.P.C. as well as Form No.45 in Schedule II of the Cr.P.C. to canvas the point that the accused would also be liable to pay the bond amount as directed by the trial court. 5 Crl.Appeal No.302 of 2005
4. I refer to the dictum of the Apex Court in Mohammed Kunju v. State of Karnataka, AIR 2000 SC 6 in which it has been held that if there is forfeiture of the bond executed by the surety due to default of the accused in making appearance before the court, it is open to the court concerned to resort to the steps contemplated in Section 446 of the Code against the sureties, besides the accused himself. I also refer to the dictum in Ram Lal v. State of U.P., AIR 1979 SC 1498, the relevant portion of which reads thus-
"...... The undertaking to be given by the surety was to secure the attendance of the accused on every day of hearing and his appearance before the Court whenever called upon. The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking 6 Crl.Appeal No.302 of 2005 being distinct could be separately enforced." (Emphasis supplied) In the light of the aforesaid decisions, I find no infirmity in the impugned order. Hence the appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms