IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Crl.MC.No. 2838 of 2009 --------------------------------------- MC.238/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... PETITIONERS/ACCUSED: 1. SHANBAVI, W/O.K.S.SANJEEVA NAIK, KURUVANI HOUSE, KUDLU VILLAGE. 2. BABITHA, AGED 28, D/O.SANJEEVA NAIK, -DO- 3. SUNIL, S/O.SANJEEVA NAIK, -DO- 4. SANDHYA, D/O.K.S.SANJEEVA NAIK, -DO- 5. SHIVARAJ, S/O.SANJEEVA NAIK, -DO- BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT/STATE: 1. SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION. 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2838 of 2009 -------------------------- ORDER Sanjeeva Naik was one of the sureties to Khalid, the accused in C.C.No.87/1995 on the file of Judicial First Class Magistrate's Court-I, Hosdrug. When the accused absconded, notices were issued to the sureties to produce the accused. Though, on service of notice, the sureties sought time, the accused was not produced. Consequently, the bail bonds were forfeited and proceedings were initiated under Section 446 of Code of Criminal Procedure by registering M.C.No. 238/1999. As per order dated 25.10.2000, the sureties were directed to pay penalty of Rs.6,000/- each after remitting the balance portion of the bond amount. The other surety remitted the penalty. As Sanjeeva Naik, one of the sureties, did not pay the penalty, distress warrant was issued for realisation of the penalty. While so, he died on 26.4.2002. Petitioners are his CRMC 2838/09 2 widow and children. Annexure-I notice was issued to the petitioners directing them to appear and pay the amount payable by Sanjeeva Naik stating that on their failure, properties of deceased Sanjeeva Naik would be attached and the amount realised. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order contending that proceedings were initiated beyond the period provided under the Code and petitioners are not liable to pay the amount and therefore, the proceedings is to be quashed. 2. As the learned counsel submitted that the order in M.C.No.238/1999 directing to pay penalty was passed after the death of Sanjeeva Naik, entire records in M.C.No.238/1999 were called for. The records show that though Sanjeeva Naik died on 26.4.2002, the order in M.C.No.238/1999 directing to pay penalty was passed on 25.10.2000, after granting opportunity to Sanjeeva Naik, serving notice on him. The records also show that CRMC 2838/09 3 proceedings were initiated by the learned Magistrate for realisation of penalty payable by Sanjeeva Naik under the order dated 25.10.2000 and it is during the period, when the proceedings was pending, death of Sanjeeva Naik was reported to the learned Magistrate, along with the death certificate and the details of the legal heirs, based on which, notice was issued to the petitioners, being the legal heirs of deceased Sanjeeva Naik, to pay the penalty, making it clear that on their failure, property of the deceased would be proceeded against. 3. I find no illegality in that order. Though it was contended that in view of Section 70 of Indian Penal Code, after the expiry of six years, a surety cannot be proceeded against and therefore, the notice issued against the petitioners is illegal, proceedings against the deceased was initiated in 2000 itself. In fact, the order to pay penalty was passed on 25.10.2000. Hence, based on CRMC 2838/09 4 Section 70 of Indian Penal Code, the proceedings cannot be challenged. Moreover, I do not find any reason for the grievance of the petitioners to the notice because they were directed to pay the amount only for the reason that Sanjeeva Naik was liable to pay that amount and if the legal heirs could pay that amount, any action as against the property of the deceased could be avoided. Petition is dismissed. Return the records to the Magistrate forthwith. 27th October, 2009 (M.Sasidharan Nambiar, Judge) tkv