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2023 Supreme(Online)(KER) 12449
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
CRL.A NO. 19 OF 2023
AGAINST THE ORDER/JUDGMENTSC 103/2017 OF SUB COURT,
PERUMBAVOOR
APPELLANTS/1ST AND 2ND COUNTER PETITIONER:
1
PAUL,
AGED 59 YEARS,
RESIDING AT NJALIYAN HOUSE,
THABORE KARA,
MOOKKANNUR, ANGAMALY, PIN – 683 577.
2
VELAYUDHAN,
AGED 52 YEARS,
S/O.CHATHAN,
CHERAMBILLY HOUSE,
THABORE, MOOKKANNUR, ANGAMALY, PIN – 683 577.
BY ADV.AJEESH M UMMER
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN – 682 031.
SRI.VIPIN NARARYAN- PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
The court has the discretion to reduce the penalty imposed under Section 446 of the Cr.P.C. considering the financial condition of the sureties.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 446 - SURETY - PENALTY - REDUCTION
Fact of the Case:
The appellants were the sureties of an accused who failed to appear before the court. The appellants were unable to ensure the presence of the accused and proceedings were initiated against them under Section 446 of the Cr.P.C. The Assistant Sessions Court imposed a penalty of Rs.25,000/- each on the appellants.
Finding of the Court:
The court held that the appellants could not comply with the conditions of the bond by ensuring the presence of the accused before the court. However, the court took a lenient view and reduced the penalty imposed on the appellants from Rs.25,000/- each to Rs.15,000/- each.
Issues: Whether the appellants were liable for the penalty imposed under Section 446 of the Cr.P.C.
Ratio Decidendi: The court held that the appellants were liable for the penalty imposed under Section 446 of the Cr.P.C. as they could not ensure the presence of the accused before the court. However, the court took a lenient view and reduced the penalty imposed on the appellants considering their financial condition.
Final Decision: The court allowed the appeal and modified the order of the Assistant Sessions Court by reducing the penalty imposed on the appellants from Rs.25,000/- each to Rs.15,000/- each.
J U D G M E N T
The appellants are the counter petitioners in Crl.M.C.No.2 of
2018 in S.C.No.103 of 2017 on the file of the Assistant Sessions Court, Perumbavoor. The aforesaid proceedings were initiated against the appellants under Section 446 of Cr.P.C. Appellants were the sureties of the accused in S.C.No.103 of 2017 on the file of Assistant Sessions Court, Perumbavoor. The accused therein was released on bail on the basis of a bond executed by the appellants herein for an amount of Rs.25,000/- each. Later, the accused failed to appear before the court and even though notices were served on the appellants they could not ensure the presence of the accused. Proceedings were initiated in such circumstances and it culminated in the impugned order by which penalty of Rs.25,000/- each was imposed upon the appellants. This appeal is submitted in such circumstances, challenging the same.
2. Heard Sri.Ajeesh M.Ummer, learned counsel for the appellants and Sri.Vipin Narayan, learned Public Prosecutor for the State.
3. After considering all the relevant aspects, I am of the view that, no interference can be made on the proceedings initiated under Section 446 Cr.P.C. as against the appellants, in view of the fact that the appellant could not comply with the conditions of the bond by ensuring the presence of the accused before the court. However, the learned counsel for the appellants seeks for a lenient view with regard to the penalty imposed upon the appellants. It is pointed out that the appellants are coolies and the amount of penalty imposed is beyond their means. It is also submitted that, they stood as sureties of the accused only because of the reason that he happened to be a neighbour.
4. After considering all the relevant aspects, even though I am not inclined to interfere with the initiation of proceedings, I am of the view that some indulgence can be shown with regard to the amount of penalty. In Sahadevan and Another v. State of Kerala [2017 KHC 981], this Court held that, it is not necessary to impose penalty under Section 446 Cr.P.C., in tune with the amount of bond in all the cases.
5. After considering all the relevant inputs, I am inclined to show some indulgence as regards the amount of penalty concerned.
6. In the facts and circumstances of the case, I deem it appropriate to fix the amount of penalty as Rs.15,000/- each instead of Rs.25,000/- each as ordered by the Assistant Sessions Court. In the result, this Crl.Appeal is allowed. Order dated 29.06.2022 in S.C.No.103 of 2017 passed by the Assistant Sessions Court, Perumbavoor shall stand modified by reducing the penalty as Rs.15,000/- each instead of Rs.25,000/- each as ordered by the learned Assistant Sessions Court. The said amount shall be deposited by the appellants within a period of one month from the date of receipt of a copy of this judgment, failing which, it shall be open for the learned Magistrate to initiate appropriate proceedings against the appellants.
