Kerala High Court
Appu S/O Santhan vs State Of Kerala, Rep By on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
CRL.A NO. 2520 OF 2006
AGAINST THE ORDER IN MC 8/2006 DATED 23.3.2006 IN S.C.NO.841/2000 OF
ADDITIONAL SESSIONS JUDGE, FAST TRACK (ADHOC)-II, THIRUVANANTHAPURAM
APPELLANTS/COUNTER PETITIONERS/SURETIES/2ND ACCUSED:
1 APPU S/O SANTHAN,
AGED 1 YEARS
REJI BHAVAN, MARUTHAMMALKA (PO),, VITHURA VILLAGE.
2 GOPINATHAN, S/O.KUTTAN SWAMI
VITHURA JEREY FARM LABOUR QUARTERS,, QUARTERS NO. L.Q.I,
MARUTHAMALA (PO),, VITHURA VILLAGE.
BY ADVS.
NAGARAJ NARAYANAN
A.G.GIRISH KUMAR
SAIJO HASSAN
A.S.SABU
RESPONDENT/STATE:
STATE OF KERALA, REP BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
SRI RANJITH GEORGE (GP)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.2520/2006 2
JUDGMENT
This appeal has been filed challenging the order in M.C.No.8/2006 in
S.C.No.841/2000 through which a penalty of Rs.10,000/- each was imposed
on the appellants, who were sureties to the 2 nd accused in S.C.No.841/2000. It
is submitted that the appellants had taken all earnest efforts to ensure the
presence of the 2nd accused before the Court and that even before the
impugned order was passed, the 2 nd accused for whom the appellants were
sureties, was arrested, produced before the Court and remanded to custody. It
is also submitted that the procedure contemplated by Section 446 of the Code
of Criminal Procedure had not been complied with in as much as no show
cause notice was issued to the appellants before imposing penalty. It is also
submitted that the 2nd accused has subsequently been acquitted by the Court in
S.C.No.841/2000. This Court in Thundichi v. State of Kerala; 2009(4)
KLT 148 held as follows:-
"3. It is argued by the learned counsel that going through the order
passed by the learned Assistant Sessions Judge, notice was issued to
the petitioners only before forfeiture of the bond and after such
forfeiture, no notice as contemplated under S.446 of the Code was
issued. That deprived petitioners of an opportunity to show cause
against imposition of penalty. Learned counsel has placed reliance on
the decision of the Supreme Court in Ghulam Mehdi v. State of
Rajasthan (AIR 1960 SC 1185). There, referring to the provisions of
S.514 of the old Code it was held that before imposition of penalty
notice has to be issued to the sureties. In this case though it is seen
from the copy of notice produced by petitioners in this revision that
petitioners were called upon to show cause against imposition of
penalty but that was before forfeiture of the bail bond. Petitioners are
correct in contending that they were not given notice after forfeiture
of the bond. It is submitted by learned counsel that subsequent to the
impugned orders accused was tried in the case and he was acquitted.
That, however is a matter to be taken into account by the learned
Assistant Sessions Judge after issuing notice to the petitioners as
contemplated in S.446(1) of the Code and while deciding whether
penalty should be imposed on petitioners since
arrest/production/appearance of the accused after forfeiture of the
bond cannot by itself exonerate the sureties from liability based on the
forfeiture of the bond. In the light of the above facts and
circumstances, the order passed by the learned Assistant Sessions
Judge and consequently the judgment of learned Sessions Judge
cannot stand and the same are liable to be set aside."
Taking note of the submissions of the learned counsel for the appellants
and essentially taking note of the submission that the procedure under Section
446 (1) of the Code of Criminal Procedure was not followed before imposing
penalty through the impugned order dated 23.3.2006, this appeal will stand
allowed and the order dated 23.3.2006 in M.C.No.8/2006 in S.C.No.841/2000
will stand set aside.
Sd/-
GOPINATH P.
JUDGE
acd
