IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2221 of 2007()
1. PUSHPAVENI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.M.C.JOHN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :11/07/2007
O R D E R
R. BASANT, J.
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Crl.M.C.Nos.2221, 2222 &
2223 of 2007
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Dated this the 11th day of July, 2007
O R D E R
The common petitioners in these three cases are sureties of
three different accused in the same case, C.C. 102 of 2005 pending
before the J.F.C.M. -II, Thamarasserry. Altogether there are three
accused persons in that case. The petitioners had offered themselves
as sureties for all the three accused and the accused were released on
bail accepting the bonds executed by the accused with the petitioners
herein as sureties.
2. On a particular date of posting when the case was posted for
examination of witnesses, the accused were not present. Their
counsel submitted that he is not in a position to proceed with the trial.
He wanted to report no instruction and a local counsel was to enter
appearance. For some technical reasons the formalities for such
appearance could not be completed and therefore adjournment was
prayed for. All the three accused did not appear before court on that
day and the counsel who was appearing hitherto filed an application
to excuse the absence of the accused. The learned Magistrate
Crl.M.C.Nos.2221, 2222, & 2223 of 2007
2
rejected the applications and issued non-bailable warrants against the
accused persons, but also did direct issue of notice to the sureties under
Section 446 Cr.P.C. The petitioners have come to this Court to assail such
notices issued to the sureties under Section 446 Cr.P.C. The petitions were
initially presented as Crl.R.P. Later the court permitted the petitioners to
convert them as Crl.M.Cs. Accordingly now it is prayed that powers under
Section 482 Cr.P.C. may be invoked to quash the notices issued under
Section 446 Cr.P.C.
3. Why should such powers be invoked? Why cannot the petitioners
appear before the Magistrate and show cause that no order under Section
446 Cr.P.C. is liable to be passed at all? I find no satisfactory answers
forthcoming. The learned counsel for the petitioners submits that it is very
difficult for the petitioners, who are from the District of Wayanad to appear
before the learned Magistrate at Thamarasserry. I fail to understand why
the petitioners must appear personally before the learned Magistrate.
Notice is issued under Section 446 Cr.P.C. and appearance through counsel
is perfectly sufficient – especially in the facts and circumstances of this
case. I do not find any reason to justify the invocation of the extra ordinary
inherent jurisdiction under Section 482 Cr.P.C. It is for the petitioners to
Crl.M.C.Nos.2221, 2222, & 2223 of 2007
3
appear before the learned Magistrate either in person or through counsel
and show cause why no order should be passed under Section 446 Cr.P.C. I
have no reason to assume that the learned Magistrate would insist on
personal physical presence of the sureties in response to such notices under
Section 446 Cr.P.C. The learned Magistrate must permit the petitioners to
appear through counsel in response to such notices and show cause.
4. These Crl.M.Cs. are dismissed with the above observations.
(R. BASANT)
Judge
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