IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 CRL.A.No. 1988 of 2008() ---------------------------------- AGAINST ORDER DATED 16.1.2008 IN Crl.M.C.No.1248/07 IN S.C.No.197/03 BY THE ADDL.SESSIONS JUDGE (ADHOC-III), THALASSERY. .................... APPELLANT(S): SURETIES -------------------------------------- 1. VETTIKAVUNGAL VARGHESE, S/O. CHACKO, AGED 51, KOTTIYOOR AMSOM DESOM, AMBAYATHODE.P.O, PALCHURAM, THALASSERY TALUK. 2. PUTHANPURACKAL JOSEPH, S/O. THOMAS, KOTTIYOOR AMSOM DESOM, AMBAYATHODE.P.O, PALCHURAM, THALASSERY TALUK. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.1988 of 2008 ------------------------------- Dated this the 5th day of March, 2010. J U D G M E N T This is an appeal preferred by the sureties in S.C.No.197/03, pending before the Court of Addl. Sessions Judge (Ad hoc) - III, Thalassery. 2. By the impugned order, the learned Sessions Judge imposed a penalty of Rs.10,000/- each on the appellants, out of the forfeited Bond amount of Rs.15,000/- each. From the order, it appears that though notices were ordered to the appellants to produce the accused, they failed to comply with the direction. It is also seen from the order that, NBW and steps u/s.82 and s.83 of Cr.P.C. issued are returned and the accused had not turn up. So the Sessions Judge came into a conclusion and recorded his satisfaction that the sureties have forfeited the Bond. It is the above order challenged in this appeal. 3. When the above appeal came up for admission on 4.9.2008, this court passed an interim order staying the Crl. APPEAL No.1988 of 2008 2 execution of the impugned order and the appellants were granted time to produce the order sheet of the court below, to substantiate the submission that the accused had already been appeared before the court, before issuing the impugned order. 4. The learned counsel submitted that, the absconding accused for whom the appellants stood as sureties, has already been produced by the appellants before the police and the police in turn produced the said accused before the court on 10.1.2008 itself and as such on the date of the impugned order, ie., on 16.1.2008, the accused was in the judicial custody. It is also submitted by the learned counsel that, subsequently the said accused was released on bail and now he is facing the trial. The learned counsel is specific on the point that, the impugned order was passed by the Trial Court inadverting to the fact that the accused was already under judicial custody on the date of the impugned order. 5. It has to be noted that the impugned order was passed on 16.1.2008 as evidenced by Annexure A1, produced by the Crl. APPEAL No.1988 of 2008 3 appellants as directed by this court on 4.9.2008. Thus it is crystal clear that, the accused was under the judicial custody of the court below and nothing mentioned, either in the Annexure A1 order sheet or in the impugned order, regarding the wear abouts of the accused. The above fact itself is sufficient to hold that the impugned order is not sustainable. As the absconding accused has already appeared before the court, who is subsequently released on bail and facing the trial, I am of the view that the appellants can be relieved of from their liability, including the penalty ordered against him as per the impugned order. In the result, this appeal is allowed setting aside the order dated 16.1.2008 in Crl.M.C.1248/2007 in S.C.No.197/2003 of the Sessions Court, Thalassery. V.K.MOHANAN, Judge. ami/