IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 CRL.A.No. 1095 of 2008(B) ------------------------ AGAINST THE ORDER DATED 09/11/2007 IN MC.15/07 IN S.C.864/2004 of ADDL. SESSIONS JUDGE, FAST TRACK COURT-I, TRIVANDRUM .................... APPELLANTS/CR.PETITIONERS: --------------------------------------------- 1. SAFEEDA, D/O. MUHAMMED ISMAIL, THANDALIL VEEDU, VILABHAGOM DESOM,VETTOOR VILLAGE, CHIRAYINKIL TALUK. 2. SHEMEENA BEEVI, D/O.ABDUL RASHEED, ROADARIKATHU VEEDU, THOTTAMUKKU DESOM, VITHURA VILLAGE. BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.M.CHANDRAN RESPONDENT/PETITIONER: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.1095 of 2008 ---------------------------------------- Dated this the 22nd day of July 2008 J U D G M E N T In this appeal under Section 449 Cr.P.C the appellant assail an order passed under Section 446 Cr.P.C against them directing them to pay an amount of Rs.25,000/- as penalty. Petitioners were sureties of an accused person who faced allegations under Sections 366 and 376 I.P.C. He was arrested. He was enlarged on bail on his executing a bond for Rs.25,000/- with two solvent sureties. Petitioners offered themselves as sureties. The learned Magistrate accepted them as sureties. The accused was enlarged on bail on the strength of the bond executed by the accused with the petitioners as sureties. 2. The accused did not appear before the learned Magistrate as directed. The learned Sessions Judge issued notice to the sureties. The sureties did receive notice. They did not produce the accused before the court. It is in these circumstances that the learned Sessions Judge proceeded to pass the impugned order imposing penalty of Rs.25,000/- on the appellants. The learned counsel for the petitioner initially Crl.M.C.No.1095/08 2 wanted time to ascertain whether the accused person has appeared before the court by now. It is now reported that the accused did not appear before court. He is still absconding. The allegations against him are serious. In spite of sufficient time granted, the accused has not been produced even now. The learned counsel for the appellants do not have a submission that the appellants will be able to produce the accused within any specified period of time. The learned counsel only urges that leniency may be shown to the appellants. 3. What is the ground to show leniency? At least during the pendency of appeals under Section 449 Cr.P.C, if the presence of the accused person is secured, that is usually reckoned as a relevant circumstance by this court to reduce the penalty amount. But where, inspite of the lapse of a considerable length of time, the presence of the accused has not been secured by the sureties and they do themselves have no hope of doing the same, I am certainly of the opinion that it would be improper to show any undeserved sympathy or leniency to the petitioner. The interests of public justice demand that the bounden and the sureties must scrupulously abide by Crl.M.C.No.1095/08 3 the conditions of the bond executed by them in favour of courts. Any misplaced sympathy or leniency is likely to send out a negative message which would endanger and result in further delay in the judicial process which is already scandalous. I am not persuaded to agree that the appellant deserve to be shown any leniency in the matter. 4. This Crl.A is in these circumstances dismissed. The learned counsel for the appellants submits that the appellants may not be sent to prison for failure to make the payment and some further time may be granted to the appellants to make the payment. I direct that the learned Sessions Judge shall not send the appellants to undergo imprisonment for default any payment till 22/9/2008. (R.BASANT, JUDGE) jsr Crl.M.C.No.1095/08 4 Crl.M.C.No.1095/08 5 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006