A composite order imposing penalties without adequate notice constitutes procedural error, warranting modifications in penalties imposed under the Code of Criminal Procedure.

J U D G M E N T

This appeal has been filed challenging the order dated 20-01-2016 in M.C.

No.7/2006 in S.C No.545/2001 on the file of the Additional Sessions Judge for trial of Abkari Act cases, Neyyattinkara. The appellants, sureties for the accused in S.C No.545/2001, were proceeded with under Section 446 of the Code of Criminal Procedure on the failure of the accused to appear before the court. A show-cause notice was issued to the appellants under the said provision. The order records that according to the show cause, notice the appellants appeared and were granted time to secure production of the accused before the court. However, on their failure to do so the court proceeded to forfeit the bond for Rs.25,000/- each executed by the appellants and a penalty of the same amount was imposed on them. It was also directed that in the event of non-payment or in the event of the amount not being recovered under Section 421 Crl.P.C. the appellants shall undergo imprisonment in civil prison for 3 months.

2. I have heard Sri. R.T. Pradeep, learned counsel for the appellants and learned Public Prosecutor appearing for the State. The learned counsel for the appellants would submit that the order of the learned Sessions Judge suffers from a procedural defect in as much as a composite order for recovery of the amount of fine and imprisonment in civil prison was passed contrary to the procedure set out in Section 446 . He would also submit that though a show-

cause notice was issued to them the penalty was imposed without any further notice to show cause as contemplated under Section 446 . He also submits that the appellants are manual labourers engaged in the picking of coconuts and that the penalty imposed is harsh. The learned counsel for the appellants has also placed reliance on a decision of this court inSahadevan and another v. State of Kerala ( 2017 KHC 981 ) to contend that in almost identical circumstances this court had reduced the penalty imposed to a reasonable sum.

3. The learned Public Prosecutor on the other hand submits that passing of composite order may not, in the facts of the present case, amount to deviation from a procedure prescribed under Section 446 . He submits that the appellants had appeared before the court through counsel as is evident from the order itself. However, he would fairly submit with reference to Form 48 of the Code that before the imposition of penalty a notice in that Form should be issued calling upon the appellants either to pay the penalty or to show cause why penalty should not be imposed on them.

4. Having considered the submissions raised and having perused the judgment of this court in Sahadevan's case (supra), I am of the opinion that there is merit in the contention raised by the learned counsel for the appellants that a show cause notice ought to have preceded the order imposing the penalty. That finding would have normally resulted in the order being set aside and the matter remanded for fresh consideration. However, because this is an appeal of the year 2006 and that the impugned order is dated 20-01-2006 I am of the opinion that such a remand is not necessary. Taking note of the view taken by this court in Sahadevan's case (supra), I am of the opinion that this appeal can be disposed of by reducing the amount of penalty imposed on the appellants.

Accordingly, I modify the order dated 20-01-2006 in M.C. No.7/2006 in S.C. No.545/2001 on the file of the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara by reducing the amount of penalty imposed on the appellants to a sum of Rs.1,000/- each, which shall be paid by the appellants within one month from the date of receipt of a certified copy of this judgment. On failure to pay the amount as directed above, further proceedings under Section 446 read with Section 421 shall be taken against the appellants.