IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 CRL.A.No. 1587 of 2011 ------------------------------- (AGAINST THE ORDER IN CRL.MC.NO.61/2010 IN S.C.NO.397/2007 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA) .................... APPELLANTS(S): RESPONDENTS IN THE MC ------------------------ 1. M.J.JOSEPH, S/O. M.V.JOSEPH, MAVELIKKATTU VEEDU, KEEZHVAIPUR, MALLAPPALLY, PATHANAMTHITTA. 2. MOLY ALEXANDER, W/O.ALEXANDER, KAKKUNNIL VEEDU, MUNDANKAVU, CHENGANNUR. BY ADV. SRI.T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM RESPONDENT(S): COMPLAINANT --------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1587 of 2011 ---------------------------------------- Dated this the 1st day of September, 2011 J U D G M E N T The sureties for the sole accused in S.C.No.397 of 2007 are the appellants, who challenge the order dated 30.11.2010 of the court of Additional District and Sessions Judge (ADHOC) Court No.I, Pathanamthitta in Crl.M.C.No.61/2010 in the above sessions case, which is an order issued under Section 446 of Cr.P.C. imposing a penalty of Rs.10,000/- on each of the appellants. 2. Heard the counsel for the appellants as well as the learned Public Prosecutor. I have also perused the order impugned. 3. Counsel for the appellants vehemently submitted that the accused for whom the appellants stood as sureties is admitted in the Medical College Hospital, Kottayam from 29.6.2009 onwards for treatment of AIDS and subsequently, he expired on 31.12.2010. It is also the submission of the learned counsel that after the committal of the case, when the above Sessions Case was posted for framing of charge, the accused appeared before the trial court on 15.5.2010 and the charge was CRL.A.NO.1587 of 2011 :-2-: framed in his presence and thereafter, the trial was adjourned after fixing the schedule for the examination of witnesses and thus, the next posting date was fixed as 28.8.2010 for starting the examination of the witnesses. According to the learned counsel, it was in the meanwhile, the accused was hospitalized and therefore, the counsel for the accused filed an application before the trial court on 20.8.2010 informing the fact regarding the hospitalization of the accused and seeking postponement of the trial, but according to the learned counsel, ignoring the above petition, the learned Judge proceeded with the trial and one of the prosecution witnesses was examined in chief. It is thereafter, the learned Judge passed the impugned order. Counsel for the appellants submitted that no notice was given to the appellants before issuing the present order. 4. Learned Public Prosecutor submitted that from the impugned order, it appears that the notice was served on the appellants, but they refused to appear before the court in time and therefore, the order of the court below is correct and proper and no interference is warranted. 5. I have carefully considered the contentions raised by learned counsel for the appellants as well as the learned Public Prosecutor. CRL.A.NO.1587 of 2011 :-3-: 6. Learned Public Prosecutor is not disputing the fact that the accused is no more. It is relevant to note that the second appellant herein is none other than the mother of the accused and the first appellant is a neighbour and relative of the accused as well as the second appellant. It cannot be presumed for a moment that the appellants are not aware of the proceedings of the trial court connected with the trial of the case in which the son of the second appellant is involved. They are also aware of the fact that the accused has already been admitted in the Medical College Hospital on 29.6.2009 for his treatment. It is also a fact that after the hospitalization of the accused, counsel for the accused has filed a petition before the trial court on 20.8.2010 seeking adjournment of the trial of the case. Under the above factual circumstances, I am unable to understand as to why the appellants failed to make an application to the trial court so as to bring the facts regarding the hospitalization of the accused for whom they stood as sureties, requesting the court either relieving them from the suretyship or for postponement of the proceedings till the discharge of the accused from the hospital. The trial court has already found that notice sent to the first counter petitioner returned stating that there is no such CRL.A.NO.1587 of 2011 :-4-: person. It is also found that notice sent to second counter petitioner returned as he is in abroad. Therefore, I am unable to accept the submission of the learned counsel for the petitioner that no notice was served on the appellants. The appellants, being the sureties of the accused, are duty bound to produce the accused for whom they stood as sureties and unless they are taking precautionary steps or invoking the remedial procedure to relieve them from the liability undertaken by them through the execution of bond, it cannot be said that the trial court is wrong in its finding under Section 446 of Cr.P.C. Even if the accused is hospitalized, the very fact could have been brought to the notice of the court at the instance of the appellants. But, that was not done. Therefore, the liability fixed by the trial court against the appellants under Section 446 of Cr.P.C. is fully justified and correct. 7. However, it is a fact that the accused expired on 31.12.2010 and he was hospitalized and undergoing treatment as an inpatient from 29.6.2009 onwards and the said fact was brought to the notice of the court, though not at the instance of the appellants. But, it appears that while passing the above order and fixing the penalty amount, the court has not CRL.A.NO.1587 of 2011 :-5-: considered the above mitigating facts and circumstances. In the light of the above circumstances and as the accused is no more, I am of the view that the amount fixed by the court towards the penalty requires reconsideration. Having regard to the facts and circumstances involved in the case, I am of the view that a sum of `.1500/- each can be fixed as the penalty amount against each of the appellants and the same will be sufficient to meet the ends of justice. In the result, this appeal is disposed of confirming the legality and correctness of the order passed by the court below under Section 446 of Cr.P.C., but the penalty amount is modified and reduced to `.1500/- (Rupees One Thousand Five Hundred only) against each of the appellants. Accordingly, in modification of the order issued by the trial court, the committal court is directed to deduct `.1500/- each from the amount deposited by the appellants in the trial court while executing the bond before the committal court and the committal court is directed to release `.8500/- each to the appellants being the remaining amount out of the amount deposited by each of the appellants and thereafter, deposit a total sum of `.3000/- in the Sessions Court, being the total penalty as modified CRL.A.NO.1587 of 2011 :-6-: and fixed by this Court and the courts below are directed to cancel the coercive steps, if any, taken against the appellants. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1587 of 2011 :-7-: V.K.MOHANAN, J. CRL.A.No. OF 20 JUDGMENT Dated:2. ..2011 CRL.A.NO.1587 of 2011 :-8-: