IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 CRL.A.No. 2325 of 2008() ------------------------ AGAINST THE ORDER DATED / / IN MC 50/2008 IN SC.308/2004 of ADDL. SESSIONS COURT (ADHOC), KOLLAM .................... APPELLANT(S): COUNTER PETITIONERS 2 AND 3 ----------------------------------------- 1. VISWAMBHARAN, S/O. NANU, VILUKULATHU, PRAKULAM, THRIKKARUVA VILLAGE, KOLLAM DISTRICT. 2. KARTHIKEYAN, S/O. RAGHAVAN, PUTHENTHARA KIZHAKKATHIL, VADAKKUM MURI WEST, THAZHAVA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI. K.SIJU SRI.PRATHEESH.P RESPONDENT(S): PETITIONER ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. S.U. NAZAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.A.No. 2325 of 2008 ------------------------------------------------- Dated this the 13th day of October, 2008 JUDGMENT The appellants were the sureties of an accused who faced indictment in a prosecution for offences punishable, inter alia, under Secs.307 read with Sec.34 IPC. That accused was enlarged on bail. The case was committed to the Court of Session. Before the Court of Session, the accused had entered appearance; but subsequently he did not appear before the Sessions Court. Thereupon, the learned Sessions Judge noted that there was a breach of obligations under the bond. Notice was issued to the sureties to show cause why they should not be directed to pay the bond amount as penalty. They appeared before the learned Sessions Judge. They prayed for 1 ½ month's time to ensure that the accused appears before the Sessions Court. Indulgently that time was granted. Crl.A.No. 2325 of 2008 -: 2 :- Thereafter, when the matter came up for hearing, the accused did not appear. The sureties were also not present. It was, in these circumstances, that the learned Sessions Judge proceeded to pass the impugned order under Sec.446 Cr.P.C. This appeal under Sec.449 Cr.P.C. is against the direction to pay the entire bond amount of Rs.15,000/- under Sec.446 Cr.P.C. 2. The appellants claim to be aggrieved by the impugned order. What is the grievance? That they were the sureties is not disputed. That there was breach of conditions of the bond by the accused who did not appear before the Sessions Court on the date of posting is not disputed. That notice was issued to the sureties is conceded. That they appeared before the learned Sessions Judge is accepted. Before the learned Sessions Judge their request was only to give 1 ½ month's time to them to ensure the presence of the accused before the court. That time was granted. Thereafter, the accused did not appear. On the date to which the case was posted the appellants were also not present. In these circumstances, the learned Sessions Judge noted that there was wilful default on the part of the accused and the appellants had not shown any cause. In spite of an opportunity given to them, they have not ensured the presence of the accused before the court. It was, in these circumstances, Crl.A.No. 2325 of 2008 -: 3 :- that the impugned order was passed. 3. The learned counsel for the appellants relies on the decisions of this Court in Usman v. State of Kerala (2005 (4) KLT 348); Geetha v. State of Kerala (2006 (3) KLT 960) and Rajan v. State of Kerala (2006 (4) KLT 429). I am unable to agree that there has been any procedural incorrectness in the impugned order even when tested in the light of the three decisions referred above. Breach is established satisfactorily. Forfeiture of the bond has been recorded by the learned Sessions Judge. Show cause notice has been issued. The same was served. The appellants appeared before the learned Sessions Judge. They did not show any cause. It was thereafter that the learned Sessions Judge proceeded to pass the impugned order. 4. The learned counsel for the appellants contends that the impugned order does not show that penalty was being imposed. Only when penalty is imposed and there is non-compliance to pay the penalty can the court proceed to recover the same, it is contended. I have no quarrel with this proposition. In the impugned order, the word “as penalty” is not mentioned. The direction is to pay the bond amount of Rs.15,000/-. That it has not been stated specifically that the said amount is to be paid as Crl.A.No. 2325 of 2008 -: 4 :- penalty is according to me of no significance in the facts and circumstances of this case. The court could have imposed a direction for payment only of penalty under Sec.446 Cr.P.C. The fact that the word “as penalty” is not specifically mentioned in the order does not militate against the validity of the impugned order. 5. I find no worthwhile challenge against the impugned order on merits. The prayer is that leniency may be shown. It is conceded that the accused who had been enlarged on bail in such a serious offence has not so far entered appearance. I am not persuaded to agree that there is any room for leniency in the facts of this case. 6. This appeal is, in these circumstances, dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.A.No. 2325 of 2008 -: 5 :-