IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Crl.Rev.Pet.No. 150 of 2008() ----------------------------- CRA.463/2007 of ADDL. SESSIONS COURT-II, MAVELIKKARA SC480./2005 of ASSISTANT SESSIONS COURT, MAVELIKKARA (MC.15/07) .................... REVN. PETITIONER: APPELLANTS/CR.PETITIONER: ----------------------------------------------------------------------------------- 1. LIJU UMMEN, S/O.THOMAS, AGED 27 YEARS, EBENESER PUTHEN VEEDU, PONAKAM MURI, THAZAKKARA, MAVELIKKARA. 2. SUBHA BABU, W/O.BABU, AGED 34 YEARS, SUBHA BHAVANAM, MAVELIKKARA, (NOW RESIDING AT VELUTHERIL KIZHAKKATHIL, KAYAMKULAM) 3. SANAL KUMAR, S/O.KRISHNAN, AGED 35 YEARS, ARUPATHIL CHIRAYIL, THAYANKERI MURI, EDATHUA VILLAGE, KUTTANADU. BY ADV. SRI.R.SUNIL KUMAR RESPONDENTS: RESPONDENT/PETITIONER: --------------------------------------------------------------- THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.150 of 2008 = = = = = = = = = = = = = = Dated this the 7 th day of April, 2008 ORDER Petitioners 2 and 3 were the sureties for the 1st petitioner, who was the 4th accused in S.C.No.480/2005, on the file of the Ast.Sessions Judge, Mavelikkara, for an offence punishable under Sections 307 IPC. Consequent on the non appearance of the 1st petitioner before the Asst.Sessions Court, proceedings were initiated against the 2nd and 3rd petitioners under Section 446 Cr.P.C. The bond amount was Rs.25,000/-. To the show cause notice issued to them, the petitioners 2 and 3 had no valid explanation except that the accused(1st petitioner herein) had slipped out of the State without their knowledge and consent and that was why they were not able to apprehend him and produce him before the court. The learned Asst. Sessions Judge imposed the bond amount as penalty on the accused as well as on the sureties and in case the penalty was not paid the accused as well as the sureties were directed to undergo imprisonment in Civil Crl.R.P.No.150 of 2008 2 Prison for a period of three months each. Aggrieved by the order of the trial court, the petitioners preferred an appeal before the Addl.Sessions Judge-II Mavelikkara as Crl.Appeal No.463/2007. Since the appeal was filed out of time, there was a petition to condone the delay in filing the appeal. The lower appellate court refused to condone the delay by dismissing the petition (Crl.M.P.No.1945/2007) filed for condoning the delay. Consequently the appeal was dismissed as barred by limitation. It is the said order which is assailed in this Revision. 2. When there is a conflict of interest between the 1st petitioner (A4 in S.C.No.480/2005) on the one hand and the petitioners 2 and 3 (sureties) on the other hand, all of them should not have joined together in this revision. But the trial court committed a grave error of law in directing the accused also to undergo imprisonment in civil prison for three months which is not permissible under Section 446 Cr.P.C. The only persons who are liable to undergo imprisonment are the sureties and not the accused and that too only if the amount of penalty is finally found to be irrecoverable. Crl.R.P.No.150 of 2008 3 3. Since the 1st petitioner had no reason or explanation for his failure to appear before the trial court, the penalty of the bond amount imposed on him does not call for any interference. In the case of petitioners 2 and 3, since there is nothing to show that the 1st petitioner had made himself scarce with the knowledge or connivance of petitioners 2 and 3, I am inclined to reduce the penalty of petitioners 2 and 3 to Rs.7,500/-(Rupees seven thousand five hundred only) each. Petitioners 2 and 3 shall deposit the reduced penalty within one month from today, failing which recovery proceedings shall be initiated against them for realisation of the same. The 1st petitioner shall also deposit penalty of Rs.25,000/- (Rupees twenty five thousand only) within one month from today. This Crl.R.P. is disposed of as above. V. RAMKUMAR, JUDGE sj