IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2325 of 2008()
1. VISWAMBHARAN, S/O. NANU,
... Petitioner
2. KARTHIKEYAN, S/O. RAGHAVAN,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI. K.SIJU
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :13/10/2008
O R D E R
R. BASANT, J.
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Crl.A.No. 2325 of 2008
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Dated this the 13th day of October, 2008
JUDGMENT
The appellants were the sureties of an accused who faced
indictment in a prosecution for offences punishable, inter alia,
under Secs.307 read with Sec.34 IPC. That accused was
enlarged on bail. The case was committed to the Court of
Session. Before the Court of Session, the accused had entered
appearance; but subsequently he did not appear before the
Sessions Court. Thereupon, the learned Sessions Judge noted
that there was a breach of obligations under the bond. Notice
was issued to the sureties to show cause why they should not
be directed to pay the bond amount as penalty. They
appeared before the learned Sessions Judge. They prayed for
1 = month’s time to ensure that the accused appears before
the Sessions Court. Indulgently that time was granted.
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Thereafter, when the matter came up for hearing, the accused
did not appear. The sureties were also not present. It was, in
these circumstances, that the learned Sessions Judge proceeded
to pass the impugned order under Sec.446 Cr.P.C. This appeal
under Sec.449 Cr.P.C. is against the direction to pay the entire
bond amount of Rs.15,000/- under Sec.446 Cr.P.C.
2. The appellants claim to be aggrieved by the impugned
order. What is the grievance? That they were the sureties is
not disputed. That there was breach of conditions of the bond
by the accused who did not appear before the Sessions Court on
the date of posting is not disputed. That notice was issued to
the sureties is conceded. That they appeared before the learned
Sessions Judge is accepted. Before the learned Sessions Judge
their request was only to give 1 = month’s time to them to
ensure the presence of the accused before the court. That time
was granted. Thereafter, the accused did not appear. On the
date to which the case was posted the appellants were also not
present. In these circumstances, the learned Sessions Judge
noted that there was wilful default on the part of the accused
and the appellants had not shown any cause. In spite of an
opportunity given to them, they have not ensured the presence
of the accused before the court. It was, in these circumstances,
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that the impugned order was passed.
3. The learned counsel for the appellants relies on the
decisions of this Court in Usman v. State of Kerala (2005 (4)
KLT 348); Geetha v. State of Kerala (2006 (3) KLT 960) and
Rajan v. State of Kerala (2006 (4) KLT 429). I am unable to
agree that there has been any procedural incorrectness in the
impugned order even when tested in the light of the three
decisions referred above. Breach is established satisfactorily.
Forfeiture of the bond has been recorded by the learned
Sessions Judge. Show cause notice has been issued. The same
was served. The appellants appeared before the learned
Sessions Judge. They did not show any cause. It was thereafter
that the learned Sessions Judge proceeded to pass the impugned
order.
4. The learned counsel for the appellants contends that the
impugned order does not show that penalty was being imposed.
Only when penalty is imposed and there is non-compliance to
pay the penalty can the court proceed to recover the same, it is
contended. I have no quarrel with this proposition. In the
impugned order, the word “as penalty” is not mentioned. The
direction is to pay the bond amount of Rs.15,000/-. That it has
not been stated specifically that the said amount is to be paid as
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penalty is according to me of no significance in the facts and
circumstances of this case. The court could have imposed a
direction for payment only of penalty under Sec.446 Cr.P.C. The
fact that the word “as penalty” is not specifically mentioned in
the order does not militate against the validity of the impugned
order.
5. I find no worthwhile challenge against the impugned
order on merits. The prayer is that leniency may be shown. It is
conceded that the accused who had been enlarged on bail in
such a serious offence has not so far entered appearance. I am
not persuaded to agree that there is any room for leniency in the
facts of this case.
6. This appeal is, in these circumstances, dismissed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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