Koragappa, S/O Late Chaniya vs State Of Kerala
2021 Latest Caselaw 18551 Ker

                 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. 2157 OF 2006
 AGAINST THE ORDER IN MC 29/2005 IN SC NO.1/2005 DATED 12.9.2006 OF
                   SESSIONS JUDGE, KASARAGOD, KASARGOD
APPELLANTS/COUNTER PETITIONERS:

     1        KORAGAPPA, S/O LATE CHANIYA
              KAVEIMOOLA, PUNDOOR, NEKRAJE VILLAGE.

     2        T.K.MADHAVAN SO.LATE T.K.KANNAN
              KOCHI HOUSE, PUNDOOR KOCHI, NEKRAJE VILLAGE.

              BY ADV T.B.SHAJIMON



RESPONDENT:

              STATE OF KERALA
              REP. BY THE, PUBLIC PROSECUTOR, ERNAKULAM.

              BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

              SRI SANGEETH RAJ (GP)


THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2157/2006                        2

                                 JUDGMENT

This appeal has been filed challenging the order dated 12.9.2006 in

M.C.No.29/2005 in S.C.No.1/2005 on the file of the Sessions Court,

Kasaragod. The appellants are counter petitioners 2 and 3 in M.C.No.29/2005.

The appellants were the sureties for the accused in S.C.No.1/2005. The Court

initiated proceedings under Section 446 Cr.P.C. and notice was served on the

counter petitioners 2 and 3 who are the appellants herein. It is also recorded

that the counter petitioners did not appear before the Court and that the Non

Bailable Warrant issued against the accused, who was the counter petitioner

No.1, was returned unexecuted with the endorsement 'the accused was in Gulf'.

Therefore, the Court imposed a penalty of Rs.50,000/- each against the counter

petitioners and ordered that on failure to recover the amount, the counter

petitioners shall undergo simple imprisonment for a period of three months.

2. The learned counsel for the appellants/counter petitioners 2 and 3

in M.C.No.29/2005 would submit that there was failure to comply with the

procedure in Section 446 of the Cr.P.C. and relies on the judgment of this Court

in Thundichi v. State of Kerala; 2009 (4) KLT 148 in support of this

contention. The learned counsel submits that following forfeiture of the bond,

the sureties were entitled to a further notice, which was clearly not given, going

by what is recorded in the order dated 12.9.2006, which is challenged before

this Court. It is also submitted that, according to the instructions received, the

accused had subsequently surrendered before the Court. In Thundichi

(Supra), this Court 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."

The order in M.C.No.29/2005 in S.C.No.1/2005 does not show that the

procedure had been followed. Therefore, this appeal is allowed and the order in

M.C.No.29/2005 in S.C.No.1/2005 will stand set aside as against the

appellants.

sd/-

GOPINATH P.

JUDGE acd