IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 CRL.A.No. 585 of 2011() ------------------------------ MC NO.10/2006 IN SC.1118/2003 OF ADDL. SESSIONS COURT, FAST TRACK-1, TRIVANDRUM ................... APPELLANTS/COUNTER PETITIONERS: -------------------------------------------------------- 1. SHAMNAD,S/O.ABUBACKER,PALLINADA VEEDU, NEAR KOTTAPURAM, MUSLIM MOSQUE,KOLLAMKODE WARD, KULATHAMAL VILLAGE, NEYYATTINKARA. 2. JUMARIATH BEEVI, D/O.SAFWA BEEVI, 8/137, ERAPPIL VEEDU, ATTUPURAM, PANAVOOR. 3. ASUMA BEEVI, D/O.KHADEEJA UMMAL, VADAKKUMKARA VEEDU, 7/781,AYANATHUKONAM, PUNALAL, VELLANADU. BY ADVS. SRI.G.SUDHEER SMT.M.JAYASREE RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SCL. CRL.A.No. 585 of 2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A: TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY DR. A. ASHRAF ALI, KIMS & SANTHWANA HOSPITAL, TRIVANDRUM DATED 18.10.2008. ANNEXURE B: TRUE COPY OF JUDGMENT IN S.C. NO.1103/2008 DATED 30.9.2008 PASSED BY THE COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (FAST TRACK-COURT-I), THIRUVANANTHAPURAM. RESPONDENT'S ANNEXURE: NIL /TRUE COPY/ PA TO JUDGE SCL. V.K.MOHANAN, J. --------------------------------- Crl.A.No. 585 of 2011 ------------------------------------ Dated this the 27th day of September, 2011 J U D G M E N T The first appellant is the accused in SC No.1118/2003 and the appellants 2 and 3 are his sureties in the above case. The offence alleged against the accused/1st appellant is that he had committed the offence punishable u/s.333 of IPC. Though, the 1st appellant was released on bail on the basis of bond executed by appellants 2 and 3, he jumped over the bail condition, which finally culminated in the order dated 7.3.2006 in M.C.No.10/2006 in SC No.1118/2003 of the court of Addl. Sessions Judge (Fast Track Court)-I, Thiruvananthapuram, by which the learned Judge imposed a penalty of Rs.20,000/- each on the appellants herein. It is the above order, under challenge in this appeal. 2. I have heard Sri.G.Sudheer, learned counsel for the appellants and the learned Public Prosecutor Sri.K.S.Sivakumar. 3. Counsel for the appellant submitted that, though the accused is found guilty u/s.333 of IPC, he is released to the custody of his father u/s.4(1) of the Probation of Offenders Act Crl.A.No. 585 of 2011 2 for the period of 2 years. It is also the submission of the learned counsel that during the trial of the case, the 1st appellant/accused was sent to mental Asylum, because of his mental ailment and thus, counsel submitted that, a lenient view may be taken in the matter of penalty. 4. Having regard to the facts and circumstances involved in this case, according to me, if once the 1st appellant/accused is released on bail on execution of the bond, he is bound to appear before the trial court as and when demanded by the court for his appearance and the appellants 2 and 3 are duty bound to produce the accused for whom they stood as sureties. But in the present case, 1st appellant failed to appear before the court and the appellants 2 and 3 failed to produce the 1st appellant/accused in terms of the undertaking made by them. Therefore, I find no reason to interfere with the order issued by the court below imposing penalty against the appellants. Accordingly, the order imposing penalty u/s.446 of Cr.P.C against the appellants is confirmed. 5. But it is relevant to note that subsequently, the 1st appellant/accused appeared before the court below and the trial further proceeded, which culminated in the judgment dated Crl.A.No. 585 of 2011 3 30.9.2008 in SC No.1103/2008 by which though, the 1st appellant is found guilty u/s.333 of IPC, he is released to the custody of his father u/s. 4 (1) of the Probation of Offenders Act for a period of 2 years. It is also not beyond dispute that the 1st appellant is a mental patient. Under the above mitigating circumstances, according to me, justice demands modification of the penalty amount especially, when there is no willful laches or negligence on the part of the 1st appellant in appearing before the court below and for the failure of the appellants 2 and 3 in producing the 1st accused before the court. Thus, according to me, the penalty amount fixed by the court below against each of the appellants can be reduced into Rs.5,000/- each which will be sufficient to meets the ends of justice. In the result, this appeal is disposed of confirming the order of the learned Sessions Judge u/s.446 of Cr.P.C imposing penalty against the appellants, but the penalty amount is modified and reduced from 20,000/- into 5,000/-. Accordingly, each of the appellants are directed to pay a sum of Rs.5,000/- being the penalty u/s.446 of Cr.P.C. The learned counsel for the appellant submitted that as ordered by this Court on 23.8.2011 in Crl.M.A.3038/2011, each of the petitioners/appellants has Crl.A.No. 585 of 2011 4 deposited Rs.5,000/- in the trial court, as evidenced by the receipt produced before this Court and the memo dated 30.8.2011 and the amount so deposited may be adjusted towards the modified amount of penalty. I find no reason to reject the above request. Accordingly, there will be a direction to the trial court that the amount already deposited by each of the appellants in terms of the order dated 23.8.2011 in Crl.M.A.No.3038 of 2011 shall be adjusted towards the penalty amount now revised and fixed by this Court and treated that the appellants have already deposited the modified amount. Accordingly, the coercive steps if any, initiated against the appellants shall stand dropped since each of the appellants have already deposited Rs.5,000/- in the court below being the modified amount of penalty u/s.446 of Cr.P.C. The Crl. Appeal is disposed of accordingly. V.K.MOHANAN, Judge pm/