IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 Crl.MC.No. 364 of 2009() ------------------------ AGAINST THE ORDER IN MC 27/08 IN SC.340/2006 of SESSIONS COURT, PALAKKAD .................... PETITIONERS/PETITIONERS: ---------------------------------------- 1. P.A. ABDUL JABBAR, S/O. ABDUL KHATHER MUTTIKULLANGARA, PUTHUPARIYARAM VILLAGE, PALAKKAD. 2. P.A. ALI MUHAMMED, S/O. ASSAINAR RAVUTHAR PANNIYAMPADAM, MUTTIKULLANGARA, DO. DO. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT/STATE: ------------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 364 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January, 2009 O R D E R The petitioners are sureties for an accused facing indictment in a prosecution under the N.D.P.S. Act. That accused is aged 78 years and is badly ill and laid up. It is not possible for him to travel, submits the counsel. . The case against him stood posted before the learned Sessions Judge, Palghat. Application was filed before the learned Sessions Judge explaining that it is not possible to bring the accused to the court because of his illness. That prayer was rejected by the learned Sessions Judge. Non-bailable warrant was issued against him and notice was issued against the petitioners. They are sureties, who had executed the bond for appearance along with the accused. Proceedings under Section 446 cr.P.C. has been registered against the petitioners and the said proceedings are in progress. Crl.M.C.No. 364 of 2009 2 2. According to the petitioners they are not contumaciously responsible at all. It is a case where the accused is ill and he is laid up. It is impossible to move him. If three months time is granted, the petitioners hope that the condition of the accused will improve and they will be able to produce the accused before the learned Sessions Judge. In the meantime proceedings under Section 446 Cr.P.C. may not be allowed to continue. Warrant issued against the accused may be directed to be withdrawn. 3. The learned Sessions Judge, it is evident, has taken note of the fact that there has been breach of the stipulations of the bond. He has initiated proceedings under Section 446 Cr.P.C. It is for the petitioners to appear before the learned Sessions Judge and satisfy the learned Judge that there was no wilful default or contumacious responsibility for the petitioners in not ensuring the presence of the accused before court. The learned Judge must certainly consider the same before passing order under Section 446 Cr.P.C. If the petitioners are aggrieved by such order, they can certainly challenge the order under Section 449 Cr.P.C. Crl.M.C.No. 364 of 2009 3 4. I find absolutely no justification in the prayer to invoke the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. at this juncture. The mere fact that the plea of the accused/counsel/sureties has not been accepted by the learned Judge and had issued a warrant of arrest against the accused is no reason for me to now invoke the powers under Section 482 Cr.P.C. 5. This Crl.M.C. is dismissed. But I may hasten to observe that the learned Sessions Judge must consider the cause shown by the petitioners anxiously before passing any order under Section 446 Cr.P.C. (R. BASANT) Judge tm