IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 CRL.A.No. 803 of 2011() ----------------------- SC.403/2010 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE (MC 37/2011) .................... APPELLANT(S): RESPONDENTS ------------------------- 1. ALIMA, AGED 43 YEARS, W/O.IBRAHIM, AMEENAS, ATHINHAL, P.O.MALKOTH, AJANUR VILLAGE, KASARAGOD DISTRICT. 2. ATHINHAL GANGADHARAN, AGED 62 YEARS, S/O.KUNHIKANNAN (L), R/AT.RAVANESHWARAM, CHITHARI VILLAGE, HOSDURG TALUK, AJANUR, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT(S): PETITIONER ------------------------- STATE- REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON 28/06/2011 DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.A. No. 803 of 2011 ----------------------------------------------- Dated this 28th day of June, 2011 JUDGMENT This appeal arises from an order passed under Section 446 of the Code Criminal Procedure. 2. Appellants, as sureties, executed a bond for appearance of accused before the Additional District and Sessions Court in a Sessions Case. Since the accused did not appear, steps were taken against appellants under Section 446 of Cr.P.C. Notice was issued to them. But, they remained absent. Hence, they were directed to pay penalty of Rs.25,000/-. The bond amount is also for Rs.25,000/-. The trial court also ordered that if realisation of penalty becomes ineffective, appellants shall suffer imprisonment in a civil prison for a period of 2 months. Distress warrant was issued against appellants. 3. Learned counsel for appellants submitted that (Crl.A.803/01] 2 appellants were sureties for the 2nd accused, but the accused failed to appear before court. On 26.3.2011, on receipt of notice, appellants appeared in court and filed a petition and requested for time. It was dismissed and a case was registered. The case was posted to two days after i.e., to 28.3.2011. 4. Unfortunately, they mistook the date as 28.4.2011 and hence there was no representation on behalf of appellants. It was under that circumstances that the impugned order was passed. It is also submitted that two days thereafter, the 2nd accused and the victim in the Sessions Case settled the issues between them and the proceedings against accused were quashed, as per order dated 30.3.2011 of this Court in Crl.M.C.893 of 2011. Appellants could not bring all these facts to the notice of the court, because a wrong date was taken by mistake. 5. It is also submitted that in the light of the decision in Santha v. State of Kerala, 2011(2) KLT 816 also, the impugned order is illegal. On hearing both sides and on going through the impugned order, I find that the order in respect of (Crl.A.803/01] 3 imprisonment in civil prison is patently illegal, since the order was passed even before the appellants could pay the penalty or such penalty could be recovered. It is liable to be set aside in the light of the dictum laid down in Santha v. State of Kerala, 2011 (2) KLT 816. 6. I also take note of the fact that appellants could not bring various relevant facts to the notice of the trial court, before passing the order to pay penalty because of genuine mistake. On the facts and circumstances of the case, I find that, in the interest of justice, appellants should be given an opportunity to show cause. Hence, the following order is passed: 1) The order under challenge is set aside. 2) The case is remanded to the trial court for fresh consideration and disposal in accordance with law. 3) The trial court shall give an opportunity to the appellants to show cause, as required under Section Section 446 Cr.P.C. and dispose of (Crl.A.803/01] 4 the case, in accordance with law. 4) Appellants shall appear before the trial court on 25.7.2011. Appeal is allowed. Sd/- K.HEMA, JUDGE. Krs.