IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 CRL.A.No. 728 of 2005() ----------------------- AGAINST THE ORDER IN MC 2/05 IN SC.101/2001 of II ADDL. SESSIONS COURT, TRIVANDRUM .................... APPELLANT(S): COUNTER PETITIONERS 1 & 2 --------------------------------- 1. BINTHU D/O. SYAMALA, VILAYIL VEEDU, KURISIKADE WEST, KEEZHAVILAM VILLAGE, ATTINGAL, THIRUVANANTHAPURAM DISTRICT. 2. ANITHA D/O. LALITHA, PLAKKADU VEEDU, 270, VASATHIL VEEDU, ANATHALAVATTOM, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.G.SUDHEER RESPONDENT/ COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Crl.A.No.728 of 2005 ---------------------------------------- Dated this the 22nd day of February 2010 J U D G M E N T Basant,J The appellants are the sureties of an accused who faced indictment in a prosecution inter alia for the offence of murder punishable under Section 302 I.P.C. Altogether there were four accused persons. The alleged incident had taken place on 09/04/1999. The sessions case was registered in 2001 before the Sessions Court, Thiruvananthapuram. That case was numbered as S.C.No.101/01. When the matter came up for trial, the appellant herein (4th accused) was absconding. The case against him was hence transferred to the list of long pending cases as L.P.No.11/05. The judgment in S.C.No.101/01 was pronounced on 03/03/2006. Accused 2 and 3 were acquitted whereas the 1st accused was found guilty, convicted and sentenced under Section 302 I.P.C. 2. The 4th accused continued to be not available before the Sessions Court. He was released on bail on the strength of a bond for Rs.25,000/- executed by him (4th accused) with the appellants herein as sureties. Crl.Appeal No.728/05 2 3. The 4th accused was not available before the Sessions Court for a long period of time even after disposal of S.C.No.101/01 on 03/03/2006. At long last, the 4th accused was arrested and produced before the Sessions Court by the police on 04/08/2007. He was later enlarged on bail. The Sessions case was renumbered as S.C.No.1091/07. But it is submitted at the Bar that the 4th accused committed suicide on 23/12/2008. Consequently, S.C.No.1091/07 was closed, the charge having allegedly abated on the death of the 4th accused. 4. In the meantime, the learned Sessions Judge had initiated proceedings against the appellants herein/sureties under Section 446 Cr.P.C. By the impugned order, the court below imposed a penalty of Rs.25,000/- on both the appellants. That impugned order was passed on 17/3/2005. 5. The appellants claim to be aggrieved by the impugned order passed under Section 446 Cr.P.C. It is hence that they had preferred this appeal under Section 449 Cr.P.C. 6. We have heard the learned counsel for the appellants and the learned Public Prosecutor. What is the grievance of the appellants? The only grievance raised by the appellants before Crl.Appeal No.728/05 3 us is that the penalty imposed is excessive. They pray that leniency may be shown against them. The bond was for Rs.25,000/- and the entire bond amount has been imposed as penalty. This is unjustified. Leniency may be shown. The subsequent turn of events may also be taken into consideration. The 4th accused was subsequently made available before the Sessions Court on 04/08/2007. He has now expired also. He having been already made available before the Sessions Court on 04/08/2007, the gravity of the contumacious conduct on the part of the appellants - not producing them before the Sessions Court in terms of the bond executed by them, is reduced, submits counsel. Leniency may be shown on that score, submits the learned counsel. 7. We have considered all the relevant inputs. We note that the appellants consciously knowing the consequence, had offered themselves as sureties for an accused facing indictment in a prosecution under Section 302 I.P.C. We must assume that the appellants, knew the nature of the responsibility that they were undertaking and did undertake such responsibility with open eyes. Because of the failure of the 4th accused who did not Crl.Appeal No.728/05 4 appear before court as expected of him and because of the failure of the appellants to produce the 4th accused before court proceedings against him had to be split up and it did drag on. The same could be resumed and continued only on 04/08/2007 when he was arrested and produced by the police. 8. The interest of public justice demand that the bounden and the sureties must scrupulously abide by the terms of the bond executed by them in favour of the courts. If there is no sanctity for such bonds executed in favour of the courts, that would unnecessarily delay and protract the proceedings and shall affect the majesty of law. Closing the eyes against such unworthy conduct on the part of the bounden and sureties is likely to send out a wrong message to the polity. The same is likely to further endanger the interest of expedition and promptitude in the disposal of criminal cases. 9. We are, in these circumstances, satisfied, that the contumaciousness of the appellants does warrant imposition of an appropriate deterrent penalty on them. However, we take note of the circumstance that during the pendency of this appeal itself, the accused (4th accused) was made available before the Crl.Appeal No.728/05 5 Sessions Court to continue the proceedings. Subsequently, he was enlarged on bail again by the Sessions Court . There is no contention that thereafter, he had defaulted in appearance. Proceedings against him, it is submitted, had abated consequent to his death. We have no documents to confirm that such death of the 4th accused had taken place. However, while hearing Crl.A.No.641/06, we had asked the registry to ascertain from the court below whether proceedings against the 4th accused has been continued and if so, with what results. At that stage, we were informed that proceedings against the 4th accused has abated. We do, in these circumstances, accept the submissions of the learned counsel for the appellant that he had subsequently entered appearance. The case was recalled from the list of long pending cases and the same was closed as abated. That subsequent circumstance is taken into account by us to reduce the quantum of penalty imposed on the appellants. We are, satisfied that the said subsequent circumstance can be taken into account and the quantum of penalty can be marginally reduced. 10. In the result, a) This appeal is allowed in part. Crl.Appeal No.728/05 6 b) The impugned order is upheld in all other respects. But the quantum of penalty is reduced from Rs.25,000/- to Rs.20,000/- (Rupees twenty thousand only). (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr Crl.Appeal No.728/05 7 Crl.Appeal No.728/05 8 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009