IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRL.A.No. 1859 of 2009() ------------------------ AGAINST THE ORDER DATED 26/05/2009 IN MC 46/09 IN SC.243/2004 of ADDL. SESSIONS COURT (ADHOC-II), KASARAGOD. .................... APPELLANTS/COUNTER PETITIONERS:- --------------------------------------------- 1. DAMODHARAN, S/O. KANNAN, RESIDING AT PADNEKAD, P.O.PADNEKAD, KANHANGAD VILLAGE. 2. K.ASHOKAN, S/O. AMBADI, RESIDING AT PADNEKAD, P.O.PADNEKAD, KANHANGAD VILLAGE. BY ADV. MS. T.SUDHAMANI RESPONDENT/STATE:- ------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRA. NO. 1859/2009 ORDER ON CRL. M.A. NO. 8747/2009 IN CRA. NO. 1859/2009 DISMISSED 25.09.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ------------------------------------------------------------- Crl.A. No. 1859 of 2009 ------------------------------------------------------------ Dated this the 25th day of September, 2009. JUDGMENT The appellants were the sureties of one Pushpan who was one of the accused in S.C. No. 243 of 2004 on the file of the Additional Sessions Court, Adhoc-II. It was an abkari case. The bond amount was Rs.15,000/- each. Consequent on the non-appearance of the said Pushpan before the court, the appellants were proceeded against under Section 446 Cr.P.C by registering M.C. No. 46 of 2009. Since they were unable to apprehend Pushpan, they remained absent before the court. The learned Sessions Judge accordingly imposed a sum of Rs.7,500/- each as penalty on the appellants. Hence this appeal under Section 449 Cr.P.C. 2. The submission made by the learned counsel on behalf of the appellants that at the relevant time, Pushpan had been arrested and remanded in connection with S.C. No. 141 of 2007 on the file of the Additional Sessions Court, Crl. Appeal No. 1859 of 2009 : 2 : Adhoc-III, Kasaragod, was got verified. It is now reported by the Additional Sessions Court, Adhoc-III, Kasaragod that the said Pushpan was in judicial custody at the relevant time when he remained absent before the lower court. If so, the appellants cannot found fault with for not ensuring the appearance of Pushpan before the court below. The impugned order imposing the penalty on the appellants cannot, therefore, be sustained and is accordingly set aside. This appeal is allowed and M.C. No. 46 of 2009 in S.C. No. 243 of 2004 before the court below shall stand dismissed. Dated this the 25th day of September, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 1859 of 2009 : 3 :