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2019 DIGILAW 814 (KER)

Lekha. S, W/o. Pandyarajan v. State Of Kerala

2019-10-10

R.NARAYANA PISHARADI

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JUDGMENT : The appellants were the sureties of the 5th accused in the case S.C.No.411/2017 on the file of the Additional Sessions Court, Manathavady. The 5th accused in the case failed to appear before the court and then notice was issued to the appellants to show cause why they shall not be ordered to pay penalty. The appellants appeared before the court below on receiving the notice. They did not show any cause against imposing penalty. They also did not produce the 5th accused before the court. As per the impugned order dated 27.06.2018, the court below directed the appellants to pay penalty of Rs.25,000/-each. It was also ordered that in default of payment of the amount, they shall undergo simple imprisonment for a period of one month each in civil prison. The aforesaid order is challenged in this appeal. 2. Heard the learned counsel for the appellants and the learned Public Prosecutor. 3. The offences alleged against the 5th accused in the case were under Sections 143, 147, 148, 342, 452, 353 and 307 r/w with 149 IPC and also under Section 120B IPC. There is no dispute with regard to the fact that the 5th accused made default in appearance before the court below. 4. The appellants have no case that they did not receive the notice issued from the court below to show cause against imposing penalty on them. The impugned order shows that they appeared in the court below but they did not show any cause against imposing penalty. In such circumstances, there is no illegality in the order passed by the court below imposing penalty on the appellants. 5. Learned counsel for the appellants submitted that the 5th accused subsequently appeared before the court below and he was granted bail by the court. Learned counsel for the appellants has produced a copy of the order passed by the court below in this regard for perusal of this court. Considering this aspect, I find that some leniency can be shown to the appellants and that the amount of penalty imposed on them can be reduced from Rs.25,000/-to Rs.10,000/-. 6. However, it is found that the court below has committed an illegality, making a direction that the appellants shall undergo imprisonment in civil jail. Considering this aspect, I find that some leniency can be shown to the appellants and that the amount of penalty imposed on them can be reduced from Rs.25,000/-to Rs.10,000/-. 6. However, it is found that the court below has committed an illegality, making a direction that the appellants shall undergo imprisonment in civil jail. Such a direction or order could have been made only if the penalty was not paid and it could not be recovered as per the procedure mentioned under Section 446 (2) Cr.P.C. Such a direction shall not be made at the time of imposing penalty. Consequently, the appeal is allowed in part. The impugned order passed by the Additional Sessions Court, Manathavady in Crl.M.C.No.1/2018 is modified and the amount of penalty imposed on the appellants is reduced to Rs.10,000/-each (Rupees ten thousand only). The direction made by the court below that the appellants shall undergo simple imprisonment for one month each in civil prison is set aside. If the appellants fail to pay the amount of penalty as reduced by this Court within a period of one month from today and if the amount of penalty could not be recovered by taking steps, then the court below shall pass appropriate orders for imprisonment of the appellants in civil prison.