IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 Crl.MC.No. 4708 of 2010() ------------------------------------ CRA. 776/2008 OF THE SESSIONS COURT, THRISSUR. C.C. NO.569/2005 BY JUDICIAL FIRST CLASS MAGISTRATE COURT -II, THRISSUR. ....... PETITIONER(S): 2ND ACCUSED ---------------------------------------------- SUNIL, AGED 39 YEARS, S/O.SOMAN, MADAMBIKKATTIL HOUSE, KUTTUR AMSOM, PAMBUR, VIYYUR, THRISSUR. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, (CIRCLE INSPECTOR OF POLICE), THRISSUR TOWN WEST POLICE STATION), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 4708 OF 2010 =========================== Dated this the 1st day of December,2010 ORDER Petitioner the second accused in C.C.569/2005 on the file of Judicial First Class Magistrate-II, Thrissur was convicted and sentenced to rigorous imprisonment for two years for the offence under section 379 of Indian Penal Code and simple imprisonment for three months for the offence under section 201 of Indian Penal Code. It was also provided that the sentence shall run concurrently. Annexure A1 judgment also shows that petitioner was granted set off from 19.11.2003 to 13.4.2004, from 21.6.2005 to 22.8.2005 and from 18.6.2007 to 24.10.2008. Therefore before the date of the judgment, petitioner was in custody for more than 1 ½ years. Petitioner challenged the conviction and sentence in Crl.A.776/2008. Crl.M.C.4708/2010 2 By Annexure A2 order the sentence was suspended on 19.11.2008 on execution of bond for Rs.50,000/- with two solvent sureties to the satisfaction of Judicial First Class Magistrate-II, Thrissur. According to the petitioner, though sentence was suspended on executing a bond, he did not execute any bond and therefore there was no effective suspension of the sentence. After the expiry of the term of the sentence, he was released from jail. It is contended that on the failure of the petitioner to execute the bond, a non bailable warrant was issued by the learned Magistrate. Petition is filed under section 482 of Code of Criminal Procedure to quash Annexure A2 order. 2. From Annexure I judgment and the fact that the order suspending the sentence was passed only on 19.11.2008, it is clear that if petitioner did not execute a bond as directed by the Sessions Court, Thrissur in Crl.M.P.4398/2008, before Judicial First Class Magistrate II, Thrissur as petitioner has been in jail from 18.6.2007 onwards, Crl.M.C.4708/2010 3 when he was convicted in C.C.569/2005, the period of sentence would have been over. If that be so, learned Magistrate cannot issue a non bailable warrant to direct the petitioner to undergo the sentence on the failure to execute the bond if he has already suffered the sentence. Petition is disposed directing Judicial First Class Magistrate-II, Thrissur not to execute the non bailable warrant against the petitioner in C.C.569/2005 even if he has not executed a bond as directed by the Sessions Court in Crl.A.776/2008 and petitioner had suffered the sentence as provided under Annexure A1 judgment. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006