Nilampath Sunil Kumar vs State Of Kerala
2023 Latest Caselaw 221 Ker

Crl.A.No.2/23                               1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
   FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                           CRL.A NO. 2 OF 2023
         AGAINST THE ORDER/JUDGMENTMC 231/2022 OF JUDICIAL
                 MAGISTRATE OF FIRST CLASS ,TALIPARAMBA
APPELLANTS/COUNTER PETITIONERS:

     1          NILAMPATH SUNIL KUMAR,
                S/O NARAYANAN, RESIDING AT NILAMPATH HOUSE,
                KARIVELLOR, PERALAM, KANNUR DISTRICT, PIN - 670
                521.

     2          C.K.KUNHIKANNAN,
                S/O.CHAKRAPANI, RESIDING AT CHITTARI, KADAPPURAM
                P.O, CHITTARI, HOSDURG, KANNUR DISTRICT, PIN -
                671 315.

                BY ADVS.
                J.R.PREM NAVAZ
                SUMEEN S.



RESPONDENT/COMPLAINANT:

                STATE OF KERALA,
                REPRESENTED PUBLIC PROCECUTOR,
                HIGH COURT OF KERALA, KOCHIN, PIN - 682 031.

                SMT.SREEJA V-SR.PUBLIC PROSECUTOR


       THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
06.01.2023,        THE   COURT   ON   THE       SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.A.No.2/23                             2

                              JUDGMENT

The appellants are the counter petitioners in

Crl.M.C.No.231 of 2022 on the file of the Judicial First Class

Magistrate Court, Thalipparamba. The aforesaid proceedings

were initiated by the learned Magistrate under Section 446 of

Cr.P.C. The appellants were sureties for the accused in

C.C.No.819 of 2017, pending before the learned Magistrate,

wherein the accused was released on bail on the basis of a bond

executed by the appellants for an amount of Rs.20,000/- each.

Later, the accused did not appear and even though notices were

served on the appellants, they could not ensure the presence of

the accused. Proceedings were initiated against the appellants

and it culminated in the impugned order by which the

appellants were imposed with a penalty of Rs.20,000/- each.

This appeal is filed challenging the said order.

2. Heard Sri.J.R.Prem Navaz, learned counsel for the

appellants and Smt.Sreeja V., learned Public Prosecutor for the

State.

3. Going through the records, I am of the view that, as

far as the initiation of proceedings under Section 446 Cr.P.C.

are concerned, no interference can be made. This is particularly

because, evidently there is breach of the condition of the bond

executed by the appellants, as they failed to ensure the

presence of the accused before the court. However, the learned

counsel for the appellants pointed out that, subsequently, the

accused had approached this Court challenging the prosecution

against the petitioner by filing Crl.M.C.No.8622 of 2022 and

further proceedings thereon are now stands stayed. In such

circumstances, taking into account of the fact that the accused

is pursuing her legal remedies, some indulgence can be shown.

Thus, I am of the view that, even though no interference can be

made with the proceedings initiated against the appellants,

some indulgence can be shown on the amount of penalty. In

Sahadevan and Another v. State of Kerala [2017 KHC

981], this Court held that, it is not necessary to impose with

penalty to the amount equal to the bond amount in all the cases.

In such circumstances, taking into account the relevant aspects

of the case, I deem it appropriate to fix the amount of penalty as

Rs.10,000/- each instead of Rs.20,000/- each as fixed by the

learned Magistrate.

In the result, this appeal is allowed and the order dated

17.10.2022 passed by the Judicial First Class Magistrate Court,

Thaliparamba shall stand modified by reducing the penalty as

Rs.10,000/- each. The said amount shall be deposited by the

appellants within a period of one month from the date of receipt

of a copy this judgment, failing which, it shall be open for the

learned Magistrate to initiate appropriate proceedings against

the appellants.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/6.1.23