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2004 DIGILAW 519 (KER)

Gopalakrishnan v. State of Kerala

2004-10-29

J.M.JAMES

body2004
JUDGMENT J.M. James, J. 1. The counter petitioners 1 to 3 in M.C. No. 37/2004 registered by the Additional District & Sessions Court (Ad hoc) 1, Kollam, consequent on the violation of the conditions of a bond executed in S.C. No. 349/99 on the file of that Court, have preferred this appeal challenging the impugned order of that court directing the counter petitioners to remit Rs. 25,000/- each as penalty or to undergo imprisonment in civil jail, for a period of six months. 2. The points that raised for consideration of this Court are that, (1) Whether an accused could be proceeded under S.446 Cr.P.C. for the failure of the sureties to produce the accused, because of which the Court forfeited the bond and imposed penalty on sureties. (2) Whether the sureties could be sentenced to undergo imprisonment in Civil jail as per the proviso to sub-section 2 of S.446, without first proceeding to recover the penalty as if it were a fine. 3. The facts revealed show that the first appellant was the accused in S.C. No. 349/99 for the offence under S.55(a) of the Kerala Abkari Act. He was convicted and sentenced to undergo rigorous imprisonment for three years, and also to pay a fine of Rupees One Lakh. An application was filed for suspending the sentence, consequent on the passing of the judgment. That was allowed. A bond was executed as ordered. Appellants 2 and 3 were the sureties of the first appellant accused. The operation of the sentence was suspended by the learned Sessions Judge on two conditions, viz., (1) execution of a bond for Rs. 25,000/- with two solvent sureties each for the like sum and (2) the first appellant accused to deposit an amount of Rs. 10,000/- within one month from the date of the order, i.e., 3-8-2004. But the first appellant did not remit the amount. The case was taken up on 4-9-2004. Appellants 2 and 3, appeared before court on 14-9-2004, on notice and reported that the accused was absconding, as he was not in station. On that date, they have filed an application praying for time to produce the first appellant accused, as the latter was learned to be at Palakkad. The case was taken up on 4-9-2004. Appellants 2 and 3, appeared before court on 14-9-2004, on notice and reported that the accused was absconding, as he was not in station. On that date, they have filed an application praying for time to produce the first appellant accused, as the latter was learned to be at Palakkad. But the learned Sessions Judge turned down the prayer, dismissed the application, forfeited the bond, and registered M.C. No. 37/ 2004 against accused and sureties as counter petitioners 1 to 3. On the next day, 15-9-2004, the learned Sessions Judge, directed all the appellants to remit Rs. 25,000/- each : and on failure, "counter petitioners shall be sentenced to undergo imprisonment for a period of 6 months in civil prison. Issue Distress Warrants against the counter petitioners 1 to 3 by 15-10-2003". Appellants, therefore, came up before this Court challenging the said order and raising the points of law enumerated above. 4. S.446(1) Cr.P.C., inter alia, lays down that, 'where a bond under the Code of Criminal Procedure is executed for the appearance of the accused before a Court, and if it is proved to the satisfaction of the Court that the bond has been forfeited, after recording the grounds of such proof, the Court may call upon any person bound by such bond to pay the penalty thereto or to show cause, why the penalty should not be paid'. Sub-section 2 of S.446 further say that if no sufficient cause is shown and the penalty is not paid, the Court may proceed to recover the same, as if such penalty were a fine imposed by it under this Code. The proviso to sub-section 2 of S.446 Cr.P.C. is as follows:- "Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months". 5. Thus, it is clear that the person so bound as surety shall alone be liable by order of the Court, to imprisonment in civil jail and not the accused. If the recovery of the penalty becomes impracticable, the accused cannot be proceeded for realisation of the penalty amount under S.446(2) proviso. 5. Thus, it is clear that the person so bound as surety shall alone be liable by order of the Court, to imprisonment in civil jail and not the accused. If the recovery of the penalty becomes impracticable, the accused cannot be proceeded for realisation of the penalty amount under S.446(2) proviso. This view has been found acceptance by another learned Single Judge of this Court in In re Chief Judicial Magistrate ( 1990 (1) KLT 762 ). 6. Further, the Magistrate has to pass an order under S.446(2) Cr.P.C., 'to proceed to recover the penalty as if such penalty were a fine imposed by it under the Criminal Procedure Code'. In this case, no direction is seen given by the learned Sessions Judge to the concerned authorities to proceed to recover the penalty imposed on them. Only when the recovery of the penalty becomes impracticable, then alone the Court is authorised to pass an order of imprisonment in civil jail, as contained in the proviso to sub-section 2 of S.446. 7. In view of the above discussions, I hold that the learned Sessions Judge went wrong in proceeding against the accused to realise an amount of Rs. 25,000/- as penalty after forfeiting the bond, and further in straight away sentencing the appellants to undergo imprisonment in civil jail. The counsel submitted that no sufficient opportunity was given to the appellants 2 and 3 to produce the fist appellant accused. It is further submitted that the first appellant accused had appeared before the court below, and remitted Rs. 10,000/- as he had gone to Palakkad to raise the amount for such remittance. Considering all these facts, I set aside the order in M.C. No. 37/2004 of the learned Sessions Judge. However, this shall not prevent the learned Sessions Judge, if it becomes necessary for the court, to proceed against the first appellant or the sureties, if such a situation so arises. Crl. Appeal is disposed of as above.