IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 CRL.A.No. 1536 of 2008() ------------------------ M.C.NO.4 OF 2008 IN SC.54/2008 OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC II), THODUPUZHA. .................... APPELLANT(S): -------------- 1. MURALI, S/O.KRISHNAN, KAKKARU PARAMBIL POOPARA KARA, POOPARA VILLAGE 2. OCHAMMAL @ OCHAMMA, W/O.KANIPPAN MULANTHANDUKARA, HOUSE XI/112, POOPARA VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERENAKULAM CRIME NO.226/2003 OF SANTHAPARA POLICE STATION). BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.A. No. 1536 of 2008 ------------------------------------------------- Dated this the 14th day of November, 2008 JUDGMENT The appellants were the sureties of an accused, who faced indictment for the capital offence of murder punishable under Section 302 I.P.C. The accused was released on bail on the strength of a bond for Rs.25,000/- executed by him with the appellants as sureties. After he was released on bail, he started absconding. He did appear before the court below for a period of about two years. But thereafter he made himself scarce. He is not available for apprehension. Trial is being held up. In these circumstances the learned Sessions Judge initiated proceedings under Section 446 Cr.P.C. against the appellants. They were served. They were not able to produce the accused before court. In these circumstances, the learned Sessions Judge issued the impugned order imposing a penalty of Rs.25,000/- and “ in default to undergo imprisonment in Crl.A. No. 1536 of 2008 -: 2 :- civil prison for a period of six months.” 2. The appellants assail the said order in this appeal under Sec.449 Cr.P.C. Time was indulgently granted to the appellants to ensure that the accused appears before the Sessions Court so that this Court can think of showing leniency. Even now the accused has not entered appearance. 3. The learned counsel for the appellants raises only two contentions in this appeal. He prays, first of all, that leniency may be shown. The accused for whom the appellants stood sureties faced indictment for the grave offence of murder. He is not made available for trial even now. I am, in these circumstances, of opinion that there is no room for any leniency at all. Misplaced leniency and sympathy would be counter productive. The act of absconding of the accused who faces such a serious crime must be frowned upon in unmistakable terms. The appellants who had offered themselves as sureties and who were accepted as sureties and the accused was released on bail of the court have a duty to ensure that he is brought Crl.A. No. 1536 of 2008 -: 3 :- before law and made available to court to proceed with the matter. I am not satisfied that any leniency deserves to be shown. The bond for Rs.25,000/- and the appellants had shown to the satisfaction of the court that they were solvent. They were accepted as sureties. The accused was released. But subsequently, he has not appeared. The plea of helplessness of the appellants cannot be accepted. The interests of public justice demand that the bounden and the sureties must scrupulously abide by the obligations in the bonds executed by them in favour of courts. The challenge on this ground cannot succeed. 4. Secondly it is contended that the court below has imposed a default sentence on the appellants. This is contrary to the specific stipulations in the proviso to Sec.446(2) Cr.P.C. The sentence to be imposed under the proviso to Sec.446(2) is not to be reckoned as a mere sentence. In fact, such sentence is to be imposed only when the penalty is not paid and the same cannot be recovered in the manner prescribed under the Code. I find Crl.A. No. 1536 of 2008 -: 4 :- merit in that contention, though only technical. I make it clear that the appellants' obligation to undergo the default sentence can be enforced under the proviso to Sec.446(2) Cr.P.C. only if it is found that the penalty amount “cannot be recovered” in the manner prescribed. 5. This appeal is, in these circumstances, dismissed with the above observations. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.A. No. 1536 of 2008 -: 5 :-