Back
2023 Supreme(Ker) 205
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
Muhammed Abdulla Sha – Appellant
Versus
State Of Kerala – Respondent
Crl.MC No. 2292 of 2023
Decided on : 22-03-2023
Advocate Appeared:
For the Appellant : V.SETHUNATH, V.R.MANORANJAN (MUVATTUPUZHA)
SREEGANESH U., OBEID ABDUL MAJEED
For the Respondent: SMT.SREEJA V., PUBLIC PROSECUTOR
Point of Law: In absence of such a notice to the accused and sureties, the bail bonds cannot be cancelled.
Headnote:
Indian Penal Code, 1860 - Sections 304 and 308 r/w Section 34 – Criminal Procedure Code, 1973 - Section 441 - Protection of Child Rights Act - Causing death by negligence - Attempt to commit culpable homicide - Whether the sureties were aware about the transfer of court that took place, in between - If transferor court had not issued notice to sureties, then, atleast the transferee court must issue notice to the sureties before forfeiting the bond. (Para 12).
Finding of the Court :
Impugned order does not reflect that any notice of transfer had been given either to accused or to sureties or even to counsel for accused. Solely because counsel for two other accused had appeared in the transferee court does not by itself ensure that the counsel for the petitioners was aware of transfer. Further, the transferor court had in fact advanced the case suo motu and then ordered the transfer. The counsel appearing for petitioners had even filed an affidavit affirming that he was unaware of transfer and also that he was appearing in the transferor court without knowledge of the transfer. The Advocate also asserts that the case was advanced suo motu, without issuing notice and was transferred without intimation. There is nothing on record to disbelieve affidavit of the counsel for the petitioners. The act of the court in transferring the case to another court without intimating the transfer cannot prejudice any person much less the petitioners.
Result: Criminal miscellaneous case is allowed
ORDER :
Actus curiae neminem gravabit -“An act of court shall not prejudice a person”, is one of the well known axioms followed by the Indian legal system. Petitioners claim benefit of the above maxim for redressal of their grievance.
2. Petitioners are accused Nos.2, 5 and 6 in S.C.No.309/2019 on the files of the Additional Sessions Court-I (Special Court), Pathanamthitta. The offences alleged are under Sections 304 and 308 r/w Section 34 of the Indian Penal Code, 1860.
3. Initially, the above referred case was pending before the Sessions Court, Pathanamthitta from where it was made over to the Additional Sessions Court-I and then to the Additional Sessions Court-IV. On 23.11.2022, the case was adjourned to 13.01.2023 and the proceedings reveal that petitioners were represented through their Advocate. However, on 01.12.2022, the case was suo motu advanced and awaiting orders from the Sessions Judge, posted the case to 13.01.2023. Again, the case was advanced suo motu on 12.12.2022 and transferred to Special Court dealing with Protection of Child Rights Act, i.e. the Additional Sessions Court-I, Pathanamthitta with the same posting date as 13.01.2023'.
4. Petitioners contend that on 13.01.2023, their Advocate was waiting before the Additional Sessions Court-IV and during roll call, when the case was not called, the Advocate clerk verified the proceedings and realized that the case was transferred and proceeded to the Additional Sessions Court-I. In the meantime, Additional Sessions Court-I had, due to non-appearance of the counsel and the accused, forfeited the bail bond and issued notice to the sureties and warrant to accused 2 and 4 to 6. The following order was passed on 13.01.2023 :-
“A1 and A3 present. A2 and A4 to A6 called absent. No representation. Counsel called absent. No representation. Bail bond forfeited. Issue non-bailale warrant to accused 2, 4 to 6, notice to sureties to 16.02.2023”.
5. When warrant was issued after forfeiture of the bond, an application was filed as Crl.M.P.No.890/2023 before the Additional Sessions Court-I, Pathanamthitta along with the affidavit of the learned counsel himself, seeking to cancel the forfeiture and to permit continuance of the sureties of accused 2, 5 and 6 as per the bond already executed. Accused No.4 was reported as having expired. By the impugned order dated 22.02.2023, the trial court dismissed the application of the petitioners after concluding that the counsel for accused 1 and 3 had appeared before the transferee court on 13.01.2023 and therefore the contention of the counsel for the petitioner that he was unaware of the transfer cannot be believed and that the affidavit filed was misleading.
6. Sri.V.Sethunath, the learned counsel for the petitioners contended that, before transfer of a case or after transfer of a case, specific notice of the transfer must be issued to the parties and to the counsel appearing for the party, and in the absence of such a notice, forfeiture of the bond and issuing warrant to the accused is legally improper. It was also submitted that sureties must also be intimated the transfer before forfeiting their bond.
7. Smt.Sreeja V., the learned Public Prosecutor, on the other hand contended that the alleged lack of knowledge of the counsel has been found to be not believable by the court, especially since the learned counsel for accused 1 and 3 were present in the transferred court and therefore the impugned order is not liable to be interfered with.
8. I have considered the rival contentions.
9. When bail bonds are executed by the accused and the sureties under Section 441 of the Cr.P.C., they are affirming that the accused will appear and be produced without fail before a particular court. The execution of bail bond is with reference to a particular court and includes the court to which the case is subsequently transferred. When the case is transferred, in order to bind the sureties with the bond and before cancelling or forfeiting the bail bonds for f
