IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 CRL.A.No. 1336 of 2011 -------------------------------- (AGAINST THE ORDER DTD.29.6.2011 IN MC NO.4/2011 IN SC.822/2009 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA ) .................... APPELLANTS(S): ----------------------- 1. KAMALASANAN, S/O.KAMALADHARAN CHELAPPALLITHEKKATHIL,KANICHANALOOR MURI CHEPPAD VILLAGE. 2. SUSHAMA @ SUSHAMA DEVI MANGALALAYAM HOUSE, ARATTUPUZHA VILLAGE ALAPPUZHA. 3. KUNJAMMA,W/O.GOPALAKRISHNAN VARUNAYIL FROM KOCHUTHUNDUPARAMBU EVOOR NORTH MURI, CHEPPAD VILLAGE. BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL RESPONDENT(S): ----------------------- STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (CRL.A.NO.1336 OF 2011) APPELLANTS' EXHIBITS: Annexure-1: Copy of the order in Crl.M.C.No.1214/10. Annexure-2: Copy of the order in Crl.M.P.No.1427/11 in SC No.822/09. -true copy- P.S.TO JUDGE. V.K.MOHANAN, J. ---------------------------------------- Crl.A.No.1336 of 2011 ---------------------------------------- Dated this the 17th day of August, 2011 J U D G M E N T The appellants herein are respectively the first accused and his sureties in S.C.No.822 of 2009 of the court of Additional Sessions Judge (Fast Track)(ADHOC II), Alappuzha. The challenge in this appeal is against the order dated 29.6.2011 in M.C.No.4 of 2011 in SC No.822 of 2009 which is an order purportedly issued under Section 446 of the Cr.P.C. 2. I have heard Sri.Sunil Kumar, learned counsel for the appellants and Sri.P.A.Salim, learned Public Prosecutor. I have also perused the impugned order and other materials produced along within this appeal memorandum. 3. From the arguments of the learned counsel for the appellants and in the light of the order passed by this Court on 11.10.2010 in Crl.M.C.No.1214 of 2010 and the order dated 7.7.2011 in Crl.M.P.No.1427/2011 in SC No.822/2009, it appears to me that CRL.A.NO.1336 of 2011 :-2-: the first appellant herein is one of the accused in Crime No.155 of 2006 of the Kareelakulangara Police Station. It is also a fact discernible that as the first appellant failed to appear in the trial court, the trial court has initiated proceedings under Section 446 of the Cr.P.C. against the first appellant/accused as well as other appellants who are the sureties of the first appellant. 4. From Annexure-I order, it appears that this Court allowed the said M.C. and the proceedings in S.C.No.318/2008 and 332/2008 of the Assistant Sessions Court, Alappuzha are quashed. It is thereafter the first appellant herein filed Crl.M.P.No.1427 of 2011 in SC No.822 of 2009 before the Additional Sessions Court (Adhoc-II) Alappuzha which petition also seems to have allowed. The impugned order is dated 29.6.2011 in M.C.No.4 of 2011 in SC No.822 of 2009. Even though the impugned order is irresponsibly and erroneously worded, from the order, it appears that, while passing that order, the learned Judge was aware of the fact that Crl.M.P.No.1427 of 2011 was pending before the same learned Judge and the first appellant was CRL.A.NO.1336 of 2011 :-3-: also absent. In the very same order, the learned Judge has observed that the explanation offered by the sureties is not satisfactory, but without referring to any of the fact including the quashing of two sessions cases and the pendency of Crl.M.P.No.1427 of 2011, such an order was passed. On a reading of the operative portion of the order, really I am failed to understand, what meant by such an order. Considering the above illegal and improper approach adopted by the court below while passing an order under Section 446 of the Cr.P.C., I am of the view that this Court cannot approve the same and accordingly, it is for the learned Sessions Judge to reconsider the same in accordance with the merit and to pass a fresh order in accordance with law. In the result, this appeal is disposed of setting aside the order dated 29.6.2011 in MC No.4/2011 in SC No.822/2009 and the matter is remitted back to the same court for passing a fresh, proper, legal and speaking order under Section 446 of the Cr.P.C., within one month from the date of receipt of a copy of this judgment, which will CRL.A.NO.1336 of 2011 :-4-: be produced by the appellants. This Criminal Appeal is disposed of as above. V.K.MOHANAN,Judge. MBS/ CRL.A.NO.1336 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.No. OF 20 JUDGMENT Dated:2. ..2011 CRL.A.NO.1336 of 2011 :-6-: