IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 Crl.Rev.Pet.No. 2288 of 2011() ------------------------------------------- CRA.476/2010 OF III ADDITIONALSESSIONS COURT, KOZHIKODE M.C.40/2010 (CC.437/2009) OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, THAMARASSERY .................... REVN. PETITIONERS/APPELLANTS/SURETIES ------------------------------------------------------------------- 1. BIJU, AGED 39 YEARS, S/O. GOPALAN, VADAKKEPURAYIL HOUSE, PAYAKKARA AMSOM, PULIKKOM DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT. 2. SUNIL KUMAR, AGED 44 YEARS, S/O. VASU, VATTAKKAVIL HOUSE, PAYAKKARA AMSOM, PULIKKOM DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT/COMPLAINANT/STATE ------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/09/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.Rev.Pet.No. 2288 of 2011 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE A-1: COPY OF THE ORDER DATED 14/05/2010 IN C.C. NO.437/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY. ANNEXURE A-2: COPY OF THE JUDGMENT DATED 28/05/2011 IN C.C. NO.437/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.2288 OF 2011 ----------------------------------------- Dated this the 23rd day of September 2011 ORDER Revision petitioners, two in number, were the sureties of the accused in C.C No.437/2009 on the file of the Judicial First Class Magistrate - I, Thamarassery. On default of the aforesaid accused to appear on the hearing date, resulting in forfeiture of his bond with his sureties, proceedings were initiated against the sureties/revision petitioners under Section 446 of the Code of Criminal Procedure. The learned Magistrate not being satisfied with the cause shown by the sureties, ordered them to pay penalty of `.25,000/- each, the amount secured under the bond executed along with the accused. In appeal, the learned Additional Sessions Judge modified the penalty limiting it to `.10,000/- each by the sureties. Feeling aggrieved, they have preferred this revision. 2. I heard the learned counsel for the revision petitioners/sureties. Penalty imposed is too harsh and it requires modification, is the submission of the learned counsel pointing out that the accused subsequently appeared, and, was granted bail, and after trial, acquitted of the offence imputed against him. 3. Going through the orders passed by the learned Magistrate and also that of the learned Additional Sessions Judge, Crl. R.P No.2288/2011 - 2 - I find that necessary particulars justifying the imposition of penalty, for the sum fixed, are absent in such orders. Though the learned Additional Sessions Judge had taken exception to the absence of such particulars in the judgment of the learned Magistrate, he too has not stated anything with respect to the default committed by the sureties and what transpired thereafter. In fact, whether any opportunity was provided to the sureties to show cause on forfeiture of the bond, why the sum fixed under the bond should not be realised as penalty from them is not spelt out in the orders of the two courts. What is stated is that the sureties had sought for time to produce the cost, but, that was not done. Even if that be so, the question to be considered under Section 446 of the Code of Criminal Procedure is different. Immediately on forfeiture of the bond, it does not follow that the entire sum fixed under the bond should be realised as penalty from the sureties. Cause, if any, by the accused or borne out by the materials has to be examined by the courts and it has to be considered judicially in fixing the sum to be paid as penalty. Further more, the judgment rendered by the learned Additional Sessions Judge, it is seen, proceeds as if that nonpayment of the penalty would invite 'imprisonment' as awarded in lieu of a sentence. Nonpayment of fine would result in detention in civil prison where penalty could not be realised after taking steps for its recovery as if it were a fine Crl. R.P No.2288/2011 - 3 - under Section 421 of the Code of Criminal Procedure. Leaving aside those aspects, I find, at this stage, the only question to be considered is whether the penalty imposed, which as modified by the learned Additional Sessions Judge at `.10,000/- by each surety warrants modification. The learned counsel for the revision petitioner has handed over to me photo copies of the receipts evidencing payment of `.2,500/- by the sureties pursuant to orders passed by the learned Additional Sessions Judge for suspending the sentence while entertaining the appeal preferred by them against the order of the Magistrate. In the given facts of the case, I find, the sum paid by the revision petitioners as aforesaid would be sufficient to meet the ends of justice. So much so, penalty imposed against the petitioners shall stand modified as `.2,500/- each by them. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge