Kerala High Court
Radhamani Amma vs State Of Kerala on 3 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
CRL.A NO. 470 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 21.12.2023 IN M.C. NO.52/2023
IN SC NO.1396 OF 2019 OF ASSISTANT SESSIONS COURT/SUB
COURT/COMMERCIAL COURT, KARUNAGAPPALLY
APPELLANTS/COUNTER PETITIONERS/SURETIES:
1 RADHAMANI AMMA
AGED 64 YEARS
W/O. LATE JAYAHARI, LAKSHAM VEEDU NO.8, ANJALI
BHAVANAM, PAMPALIL, PERINAD P.O., PANAYAM, KOLLAM,
PIN - 691601
2 ANITHA S
AGED 50 YEARS
W/O. JAYAPRAKASH, KARUVACHEZHATHU VEETTIL,
NADUVILE MURI, THRIKKARUVA VILLAGE, KOLLAM
DISTRICT, PIN - 691602
BY ADVS.
T.MADHU
C.R.SARADAMANI
RENJISH S. MENON
VRINDA T.S.
AISWARYA JAYAPAL
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
ADV.SHEEBA THOMAS - GP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Crl. Appeal No.470 of 2024
C.R.
P.G. AJITHKUMAR, J.
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Crl. Appeal No.470 of 2024
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Dated this the 03rd day of April, 2024
JUDGMENT
This appeal was filed under Section 449 of the Code of
Criminal Procedure, 1973.
2. The appellants were the sureties of the accused in
S.C. No.1396/2019 before the Assistant Sessions Court,
Karunagappally. As per the impugned order, the appellants
were directed to pay a penalty Rs.40,000/- each. The
appellants impugn the said order in this appeal.
3. Heard the learned counsel for the appellants and
the learned Public Prosecutor.
4. It is not in dispute that the appellants were the
sureties of the accused in S.C. No.1396/2019. That is a case
initiated against the accused, alleging commission of an
offence punishable under Section 55(g) of the Abkari Act.
5. The contention of the appellants is that they stood
as sureties on the insistence of the counsel appearing for the
accused, and therefore they wanted to get discharged from
the bond they had executed. It was for that purpose that they
produced the accused on 16.12.2023 and sought discharge.
The trial court, instead of discharging them forthwith,
adjourned the case to 21.12.2023. On that day, finding that
the accused failed to appear before the court, the proceedings
were initiated, and the penalty was imposed on the same day.
6. The learned counsel for the appellants would
submit that not only that the trial court violated the provisions
of Section 444 of the Code inasmuch as the request for
discharge was declined, but also the provisions of Section
446(1) of the Code were totally disregarded while imposing
penalty on 21.12.2023, the day on which proceedings were
initiated against the appellants.
7. I have perused the trial court records, in order to
ascertain the correctness of the submissions.
8. The proceedings dated 16.12.2023 in S.C.
No.1396/2019 reads as follows:
Accused is present. CW1 and 4 present. CW3
absent and Public Prosecutor informed that the said
witness is in Tamil Nadu and will appear. Counsel for
the accused filed memo relinquishing the vakalath.
Sureties are present and they informed that they
are not ready to continue. Sureties cannot be
discharged at the moment. Accused informed that
he will arrange fresh sureties by 20.12.2023 and
will also appeared fresh sureties. Therefore,
sureties will continue till the next date and they will
appear. CW1 and 4 are not examined today and
they will appear on the next date. Call on
21.12.2023.
9. The said proceedings would show that on
16.12.2023 the appellants produced the accused before the
Court and sought discharge from the bond they had executed.
Section 444 of the Code enables sureties for attendance and
appearance of a person who is released on bail claim
discharge at any time during the proceedings of the case.
Section 444 reads:
444. Discharge of sureties.
(1) All or any sureties for the attendance and
appearance of a person released on bail may at any time
apply to a Magistrate to discharge the bond, either wholly
or so far as relates to the applicants.
(2) On such application being made, the Magistrate shall
issue his warrant of arrest directing that the person so
released be brought before him.
(3) On the appearance of such person pursuant to the
warrant, or on his voluntary surrender, the Magistrate
shall direct the bond to be discharged either wholly or so
far as relates to the applicants, and shall call upon such
person to find other sufficient sureties, and, if he fails to
do so, may commit him to jail.
10. On a reading of the said provisions, it is quite clear
that the sureties have absolute right to claim discharge from
the bond at any time of the proceedings, even without
producing the accused before the court. What is required on
the part of the court is to ensure that the plea for discharge is
a bonafide one, that is to say before abscondance of the
accused. It is for the court, on making such a request, to get
the presence of the accused by issuing a warrant for his
arrest. When that is the provision regarding discharge
contained in Section 444 of the Code, the trial court ought not
have declined the plea made by the appellants for their
discharge after producing the accused before the court.
Therefore, the order of the trial court on 16.12.2023 to
continue the bond by declining the plea for discharge despite
appearance of the accused before the court is against the
provisions of Section 444 of the Code and is illegal.
11. On 21.12.2023, the appellants appeared before the
court. The accused remained absent. That prompted the trial
court to initiate action under Section 446(1) of the Code.
When the appellants have a right to get discharged from the
bond and they requested for the same on 16.12.2023, the
initiation of proceedings under Section 446(1) of the Code on
21.12.2023 was unwarranted. Upon initiating the proceedings
on 21.12.2023, no opportunity to show cause was given to
the appellants. The proceedings in the M.C case show that the
appellants filed a report, but no such report is seen with the
records forwarded to this Court by the trial court. It is
therefore inferrable that the appellants did not file any report.
Be that as it may, the trial court proceeded to impose penalty
forthwith. It is the obligation of the court, in view of the
provisions of Section 446(1) of the Code to record the
grounds for recording forfeiture of the bond. It is also
essential to give a reasonable opportunity to the sureties to
show cause before imposing penalty. When the proceedings
were initiated on 21.12.2023 and it was while the plea for
discharge by the appellants was pending consideration,
imposing penalty forthwith without affording the appellants a
reasonable opportunity to offer their explanation, there
occurred total disregard of the provisions of Section 446(1) of
the Code. Thus, the impugned order is violative of the
provisions of Sections 444 and 446 of the Code and it is liable
to be set aside.
Accordingly, this appeal is allowed.
Sd/-
P.G. AJITHKUMAR, JUDGE
SMF
