IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 CRL.A.No. 1538 of 2008() ------------------------ AGAINST THE ORDER DATED 30/06/2008 IN MC 14/2007 IN SC.195/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA .................... APPELLANT: COUNTER PETITIONER/SURETY NO.1 ----------------------------------------- RAMAKRISHNA PILLAI, S/O.RAGHAVAN PILLAI, PATTARUMADOM HOUSE, BLOCK NO.35, THONNIMUDU, PAMPADUMPARA VILLAGE, IDUKKI DIST. BY ADV. SRI.GEORGE MATHEW RESPONDENTS: PETITIONER/COMPLAINANT ----------------------------------- STATE OF KERALA, REPRESENTED BY S.I.OF POLICE, NEDUMKANDAM POLICE STATION, IDUKKI DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.A.No. 1538 of 2008 ------------------------------------------------- Dated this the 13th day of August, 2008 JUDGMENT The appellant is one of the two sureties who offered himself to bail out the accused persons in S.C.No.195/06. There were, altogether, 5 accused persons and the two sureties had offered themselves as sureties for all the 5 accused. Of the 5 accused persons, accused 3 and 4 were not available for trial. Proceedings under Sec.446 Cr.P.C. was initiated against accused 3 and 4 as well as the two sureties. One of the sureties had expired and therefore the proceedings continued only against the appellant herein and the two accused persons. The appellant now finds that proceedings are initiated against him for Crl.A.No. 1538 of 2008 -: 2 :- recovery of penalty amount due consequent to the forfeiture of the bond. The grievance of the appellant is that no proper order under Sec.446 Cr.P.C. has at all been passed. He could not therefore appeal against any order imposing penalty under Sec.446 Cr.P.C. by resort to the provisions of Sec.449 Cr.P.C. A report of the learned Sessions Judge was called for and the report dated 11/8/08 clearly shows that the procedure which has to be followed has not been followed and a speaking order under Sec.446 Cr.P.C. has not been passed by the learned Sessions Judge. 2. Though such a proper order under Sec.446 Cr.P.C. has not been passed, it is evident from the report of the learned Sessions Judge that steps for recovery of the bond amount is continuing. 3. I am satisfied that the appellant is entitled to succeed in this appeal. In the absence of an order under Sec.446 Cr.P.C., no recovery can be effected of the amounts due under Sec.446 Cr.P.C. It is true that to prefer a proper appeal under Sec.449 Cr.P.C. the petitioner is not served with any order under Sec.446 Cr.P.C. None has been Crl.A.No. 1538 of 2008 -: 3 :- passed also. But steps for recovery are going on. I am, in these circumstances, satisfied that this appeal deserves to be allowed and appropriate directions deserve to be issued. 4. In the result: (a) This Crl. Appeal is allowed. (b) All steps taken by the court below in M.C.No.14/07 in S.C.No.195/06 on 21/4/08 and thereafter are set aside. (c) The learned Special Judge, Todupuzha, is directed to dispose of M.C.No.14/07 in S.C.No.195/06 afresh in accordance with law. (d) The appellant shall appear before the learned Special Judge on 15/9/08. Notice shall be issued to the other counter petitioners in the M.C. by the learned Judge before disposing of the matter afresh. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.A.No. 1538 of 2008 -: 4 :- Crl.A.No. 1538 of 2008 -: 5 :- R. BASANT, J. ------------------------------------------------- Crl.A.No. 1538 of 2008 ------------------------------------------------- Dated this the 29th day of July, 2008 ORDER I have heard the learned counsel for the appellant for admission. The learned counsel for the appellant submits that the impugned order must be reckoned as an order passed under Sec.446 Cr.P.C. as there is no earlier order passed under Sec.446 Cr.P.C. The impugned order only shows that the M.C. is closed. But it is submitted that in spite of that order, processes have been issued to recover the bond amount from the appellant. 2. Call for a report from the learned II Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha. The learned Judge shall furnish to this Court copies of all the orders passed in M.C.No.14/07. The learned Judge shall also place before this Court a copy of the order sheet/proceedings paper maintained in M.C.No.14/07. Such report must reach this Court Crl.A.No. 1538 of 2008 -: 6 :- by 13/8/08. Call on 13/8/08. Crl.M.A.No.7650/08 There shall be a direction that no further proceedings shall be taken in pursuance of the impugned order till 13/8/208. (R. BASANT, JUDGE) Nan/ HO