IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 CRL.A.No. 184 of 2007() ----------------------- AGAINST THE ORDER DATED 14/03/2006 IN MC 13/06 IN SC.399/2004 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK-I, TRIVANDRUM .................... APPELLANT(S): APPELLANT ----------------------- BHASKARAN, S/O.KUNJILAN,KURUMANKODE, CHEMPOOR,MUDAKKAL, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THE DEPUTY TAHSILDAR, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY P.P. SRI PUZHAKKARA MOHAMMED. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.184 of 2007 ---------------------------------------------- Dated 6th April, 2009. JUDGMENT This appeal is preferred under Section 449 of Criminal Procedure Code, by one of the sureties for the sole accused in S.C.No.399 of 2004, as he is aggrieved by the order dated 14.3.2006 in M.C.No.13/2006 in S.C.No.399/2004 by which he is directed to pay a penalty of Rs.25,000/-. 2. I have heard Sri M.R.Rajesh, the learned counsel appearing for the appellant as well as the learned Public Prosecutor, 3. In the impugned order, the first counter petitioner is the accused in S.C.No.399/2004 on the file of the court of Additional District and Sessions Judge, Fast Track Court No.1, Thiruvananthapuram, in which, the offence alleged is under section 55 (a) of the Abkari Act. By the judgment dated 11.1.2006, the accused was found guilty of the charge levelled against her and accordingly she was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.one lakh. The default sentence was fixed as rigorous imprisonment for 6 months. Consequent to the conviction and sentence, the accused preferred a petition under section 389(3) of Cr.P.C. to suspend the sentence and to release her Crl.A.184/07 -:2:- on bail. Accordingly, the trial court allowed the petition and granted bail to the accused, on her executing a bond for Rs.25,000/- with two solvent sureties each for the like amount for a period from 11.1.2006 to 13.2.2006. 4. The present appellant is the first surety. As per the impugned order, the accused failed to appear before the trial court on 13.2.2006 and the sureties including the present appellant did not appear before the court below. The counsel for the accused filed an application for adjournment of the case, but the same was rejected and the court below cancelled the bail granted to the accused and ordered non bailable warrant against her and also ordered notice to the sureties including the appellant herein. Thus the case was adjourned to 4.3.2006. As the accused was absconding, NBW issued against her could not be executed. The sureties including the appellant herein filed an application through their counsel seeking time to appear before the court, which was allowed, and accordingly, the case was adjourned to 6.3.2006 from 4.3.2006. The appellant as well as the other sureties did not appear before the court below on 6.3.2006 also and an application was moved by the counsel on behalf of the sureties, but that application was rejected and registered the present M.C. against the accused as well as the sureties and the Crl.A.184/07 -:3:- case was adjourned to 14.3.2006. On 14.3.2006, none of the counter petitioners were present in the court below and according to the court below, the sureties including the appellant have failed to show sufficient explanation for not producing the accused before the court either on 13.2.2006 or thereafter on any date including 14.3.2006, on which date the order impugned was passed. So, the trial court issued the impugned order directing the sureties to pay penalty of Rs.25,000/- 5. The learned counsel for the appellant submitted that the procedure adopted by the court below before issuing the impugned order is incorrect and the impugned order itself is against the dictum laid down by this Court in the decision in Usman v. State of Kerala (2005 (4) KLT 348). According to the learned counsel, there is no proof to show that the accused has forfeited the bond executed and no opportunity was given to the appellant/sureties before making the impugned order. 6. This court in the decision cited supra has held that the most essential pre-requisite for commencing proceedings under section 446 is the forfeiture of the bond by the person who executes the bond and the forfeiture of the bond is not by an order of the court concerned. In the said decision, this court has further held that mere Crl.A.184/07 -:4:- non appearance of the accused before the court due to reasons beyond a person's control is not sufficient to impose a penalty. 7. In the present case, it is the case of the appellant that the first counter petitioner/accused for whom the appellant stood as surety approached this court by filing Crl.A.No.306/2006 and the sentence awarded against her has already been suspended on 10.2.2006, i.e. within the period fixed in the order passed by the trial court and therefore the contractual obligation of the appellant has already been over and it is for the accused - the first counter petitioner, to execute fresh bond on the strength of the order passed by this Court in Crl.A.No.306/2006. It is also pointed out that as discernible from the impugned order, the court below, without giving sufficient opportunities to the accused as well as the sureties passed the impugned order. During the course of hearing of this matter, Crl.A.No.306/2006 was also called for and as directed by this court, the learned Public Prosecutor filed a report regarding the steps taken by the prosecution for securing the presence of the accused in this case. According to the report, they are not disputing the fact that the accused in this case has already approached this Court by filing Crl.A.No.306/2006 and got an order suspending the execution of the sentence, on 10.2.2006. However, it can be seen from the report Crl.A.184/07 -:5:- that the accused in this case had already been arrested on 7.7.2006 connected with another Sessions Case No.326/2004 of the same court. Thus it is pointed out that there is no wilful laches or negligence on the part of the accused in appearing before the court below connected with the present case and as such there is no proof to show that the accused has forfeited the bond. Therefore, according to the learned counsel the order impugned is illegal and incorrect and not sustainable. 8. On a perusal of the impugned order, in the light of the dictum laid down by this Court as per the decision cited supra, it can be seen that there is no proof to come into a conclusion that the accused has forfeited the bond. It is crystal clear that an application was filed for and on behalf of the accused for the adjournment of the case, after having got an order from this Court suspending the sentence imposed by the court below. In view of the facts mentioned in the impugned order as well as in the report filed by the learned Public Prosecutor, the non appearance of the accused was not due to her willful laches or negligence. It is also beyond dispute that the accused in this case was subsequently arrested on 7.7.2006 connected with another case. It is also evident from the facts averred, which is not disputed, that the sureties including the Crl.A.184/07 -:6:- appellant were not given opportunity either to explain the situation under which they were unable to produce the accused or to produce the accused by resorting procedural and legal recourse. Therefore, the impugned order is liable to be set aside and accordingly, I do so. In the result, the order dated 14.3.2006 in M.C.13/2006 in S.C.399/2004 to the extent it is against the appellant is set aside. The coercive steps taken including Annexure B and C and all proceedings thereto, to the extent they are against the appellant, are also set aside. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.A.184/07 -:7:-