IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 CRL.A.No. 1524 of 2011() ------------------------ AGAINST THE ORDER IN MC.463/2011 IN SC.1233/2008 of ADDL. DISTRICT & SESSIONS COURT (FAST TRACK NO-1), THRISSUR .................... APPELLANT(S): -------------- 1. SAHRABANU, W/O.ASHRAFF, AGED 38 UNITHATTU HOUSE, KAVUNGAL DESOM, VELLURKUNNU VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DIST. 2. HARSHAL IBRAHIM,S/O.IBRAHIM ,AGED 40 UNITHATTU HOUSE, KAVUNGAL DESOM, VELLURKUNNU VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DIST. BY ADV. SRI.ANIL K.MOHAMMED RESPONDENT: --------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI P.A. SALIM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1524 of 2011 ---------------------------------------- Dated the 26th day of September , 2011 JUDGMENT The sureties for the sole accused in.S.C.No.1233 of 2008 of The court of Additional District and Sessions Judge, Fast Track Court No.1, Thrissur are the appellants. As per the order impugned, which is an order issued under section 446 Cr.P.C, the learned Sessions Judge imposed a penalty of Rs.10,000/- on each of the appellants and issued distress warrant against them by order dated 5.5.2011 in Crl.M.C.No.463 of 2011 in S.C.No.1233 of 2008. It is the above order under challenge in this appeal. 2. I have heard Sri Anil K.Muhammed, the learned counsel appearing for the appellants, and the learned Public Prosecutor Appearing for the State. 3. In the light of the submission of the learned counsel for the appellant and in view of the facts stated in the impugned order, it appears that the accused for whom the appellants stood as sureties was convicted and sentenced for CRA 1524/11 2 the offence under section 392 IPC by judgment dated 15.12.2010 in S.C.No.1233/2008 of the court of Additional District and Sessions Judge, Fast Track Court No.1, Thrissur, and on the same day, the execution of the sentence was suspended for two months and he was released on executing bond for Rs.10,000/- with two solvent sureties for the like amount and adjourned the case to 15.2.2011. Thus the appellants were parties to the bond executed on 15.12.2010. Though the case was adjourned to 15.2.2011, the accused was absent and consequently, bond was forfeited and issued warrant against the accused and also ordered to issue show cause notice to the witnesses under section 446 of Cr.P.C and instituted M.C.No.463/2011. From the order it appears that there was no representation from the side of the accused or the witness on 28.2.2011 and therefore notices to the sureties were repeated and they were asked to produce the accused and to appear on 30.3.2011. They were also directed to pay penalty or show cause why payment of the above amount should not be enforced against them. Accordingly, the case was adjourned CRA 1524/11 3 to 31.3.2011. It is the further finding of the learned Sessions Judge that the accused is absconded and sureties did not appear before the court despite of service of notice. The learned Judge also referred to Exts.C1 and C2 for his satisfaction that notices were served on the witnesses. Thus according to the learned Judge, in spite of the notices, the appellant's sureties did not appear before the court and they failed to produce the accused in terms of the bond undertaken by them and therefore, they are liable to be penalised and accordingly issued the impugned order. 4. The counsel for the appellants submitted that the above finding of the courts below is absolutely incorrect and against the real facts. According to the learned Counsel, in pursuance of the notices received by the appellants, they made arrangements for their appearance but there was no sitting on 30.3.2011. The counsel submitted that they have entered appearance through a counsel and the counsel filed vakalath before the court on 31.3.2011. It is also the submission of the learned counsel that the appellants have also moved an application namely CRA 1524/11 4 M.P.No.955/2011 in SC.No.1233 of 2008, with prayers to dispense with their personal appearance before the court below and also seeking one month time to produce the accused. The learned counsel submitted that by one word order dated 30.1.2011, the learned Judge rejected the above petition. In support of the above arguments of the learned Counsel, the learned Counsel handed over to me a certified copy of the Vakalath dated 29.3.2011 filed before the court below and the above referred petition and the order are shown on the docket of the above petition. The learned Public Prosecutor has no dispute regarding the genuineness of the documents relied on by the learned counsel for the appellant which handed over to me by the counsel. It is further brought to my notice that, challenging the conviction and sentence the accused had preferred an appeal, i.e. Crl.A No.733/2011 before this Court and this court by order dated 3.5.2011 suspended the execution of the sentence and released the accused on bail, after condoning the delay that occurred in filing the appeal. In the light of the fact that this court has already released CRA 1524/11 5 the accused on bail after suspending the execution of the sentence imposed against him, and considering the fact that the appellants herein had already approached before the court below before the date of the impugned order, and requested for time to produce the accused, I am of the view that the order impugned in this appeal is not proper and correct. In the light of the documents furnished to me, it is crystal clear that in pursuance of the notices issued by the court below, the appellants entered appearance through their own counsel and sought time to produce the accused. At the time of passing the order impugned, the accused was on bail granted by this court by order dated 3.5.2011. Therefore the reason given by the learned Sessions Judge in support of his order for imposing penalty against the appellants is not legally and factually sustainable and therefore the entire order itself is liable to be set aside. In the result, this appeal is allowed, setting aside the order dated 5.5.2011 in M.C.No.963/2011 in S.C.No.1333 of the court of Additional District and Sessions Judge, Fast track- I, Thrissur and all proceedings initiated against the CRA 1524/11 6 appellants including the coercive steps and distress warrant are quashed. Accordingly, this appeal is allowed. V.K.MOHANAN, JUDGE kvm/- CRA 1524/11 7