CRL.A Nos.1651/2023 and connected cases

``` CRL.A Nos.1651/2023 and connected cases ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 CRL.A NO. 1651 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRIME NO.495/2020 OF ETTUMANOOR POLICE STATION, KOTTAYAM ``` ``` AGAINST THE ORDER IN M.C.62/2022 IN SC 593/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOTTAYAM / III ADDITIONAL MACT, KOTTAYAM APPELLANTS/COUNTER PETITIONERS: ``` ``` 1RAJU YOHANNAN, AGED 55 YEARS, S/O YOHANNAN, VARAKUNNEL HOUSE, KURUMBANADAM KARA, MADAPPALLY VILLAGE, CHANGANACHERRY, PIN - 686536 2JOSHWA JOHN, AGED 61 YEARS, S/O JOHN ANJILIPARANIL HOUSE, THIRUVANCHOOR, MANARCAD, PIN - 686019 BY ADVS. JISSMON A KURIAKOSE K.R.ARUN KRISHNAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 ``` ## **`PP SRI. SANAL P RAJ`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2023, ALONG WITH CRL.A.1652/2023, 1654/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 ``` ``` CRL.A NO. 1652 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRIME NO.495/2020 OF ETTUMANOOR POLICE ``` ``` STATION, KOTTAYAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED 26.04.2023 IN M.C.NO.61/2022 IN SC 593/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOTTAYAM / III ADDITIONAL MACT, KOTTAYAM ``` ## **`APPELLANT(S)/COUNTER PETITIONERS:`** - **`1 RAJU YOHANNAN, AGED 55 YEARS, S/O YOHANNAN VARAKUNNEL HOUSE, KURUMBANADAM KARA, MADAPPALLY VILLAGE, CHANGANACHERRY, KOTTAYAM DIST., PIN - 686536`** - **`2 JOSHWA JOHN, AGED 61 YEARS, S/O JOHN ANJILIPARANIL HOUSE, THIRUVANCHOOR, MANARCAD, KOTTAYAM DIST, PIN - 686019`** ``` BY ADVS. JISSMON A KURIAKOSE K.R.ARUN KRISHNAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`PP SRI SANAL P RAJ`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2023, ALONG WITH CRL.A.1651/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 3 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 ``` ``` CRL.A NO. 1654 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRIME NO.495/2020 OF ETTUMANOOR POLICE ``` ``` STATION, KOTTAYAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED 26.04.2023 IN M.C.60/2022 IN SC 593/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOTTAYAM / III ADDITIONAL MACT, KOTTAYAM ``` ## **`APPELLANTS/COUNTER PETITIONERS:`** ``` 1RAJU YOHANNAN, AGED 55 YEARS, S/O YOHANNAN, VARAKUNNEL HOUSE, KURUMBANADAM KARA, MADAPPALLY VILLAGE, CHANGANACHERRY, PIN - 686536 2JOSHWA JOHN, AGED 61 YEARS, S/O JOHN ANJILIPARANIL HOUSE, THIRUVANCHOOR, MANARCAD, PIN - 686019 BY ADVS. JISSMON A KURIAKOSE K.R.ARUN KRISHNAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 ``` ## **`PP SRI SANAL P RAJ`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2023, ALONG WITH CRL.A.1651/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 4 ``` ## **`JUDGMENT`** ``` Sub-section (3) of Section 446 Cr.P.C. being a beneficial provision cast a duty on every court dealing with forfeiture of bail bond to afford an opportunity and to see that the benefit was availed of by the party concerned in letter and spirit. The court should not act mechanically, but should always adopt a pragmatic approach so as to enlighten the parties regarding the benefit that can be availed of by giving a specific opportunity. Failure to address the benefit under sub-section (3) of Section 446 Cr.P.C. would amount to declining the benefit to the party concerned and would defeat the very purpose under that beneficial provision. Certainly, the duty cast upon the court to address sub-section(3) invariably in all cases is peremptory and cannot be avoided simply in a routine way. Substantial compliance of the requirement as mandated under sub- section (3) of the Act should be established and it must find a place in the order passed forfeiting the bail amount and imposition of penalty. A cryptic ``` ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 5 ``` ``` order without addressing the benefit that can be extended under sub-section (3) of Section 446 Cr.P.C. cannot be sustained and it will go against the legislative intent while incorporating sub-section(3) of Section 446 Cr.P.C. Initial show cause notice before forfeiting the bond amount may not be a sufficient compliance of the mandate under Section 446(3) Cr.P.C. Earlier, this Court has laid down the legal position inValsan and Another v. State of Kerala [2021 SCC OnLine Ker 2981 : (2021) 4 KLT 716 : 2021 (4) KHC 372] by referring yet another decision of this Court in Sahadevan v. State of Kerala (2017 KHC 981). ``` ``` 2. It appears from the impugned order that it is not clear whether any opportunity was given to the appellants to apply under Section 446(3) Cr.P.C.. The learned counsel for the appellants at this juncture pressed for a remand of the matter so as to enable the appellants under sub-section(3) of Section 446 Cr.P.C. The impugned order hence will stand set aside. The matter is remanded back to the trial court so as to afford an opportunity to the appellants. The ``` ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 6 ``` ``` parties shall appear before the trial court on 20/11/2023. ``` ``` All the appeals will stand allowed in part accordingly. ``` ``` Sd/- P.SOMARAJAN JUDGE ``` msp ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 7 ``` ## **`APPENDIX OF CRL.A 1652/2023`** ``` PETITIONER ANNEXURES Annexure1 Annexure2 ``` ``` CERTIFIED COPY OF THE ORDER DATED 26/04/2023 IN MC61/2022 IN S.C.NO.593/2021 PENDING IN THE FILES OF THE ASSISTANT SESSIONS JUDGE V, TRUE COPY OF THE BAIL BOND DATED 22/02/2023 ``` ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 8 ``` ## **`APPENDIX OF CRL.A 1654/2023`** ``` PETITIONER ANNEXURES Annexure1 ``` ``` Annexure2 ``` ``` CERTIFIED COPY OF THE ORDER DATED 26/04/2023 IN MC60/2022 IN S.C.NO.593/2021 PENDING IN THE FILES OF THE ADDL SESSIONS JUDGE V, KOTTAYAM TRUE COPY OF THE BAIL BOND FOR THE 1ST ACCUSED DATED 22/02/2023 ``` ``` CRL.A Nos.1651/2023 and connected cases ``` ``` 9 ``` ## **`APPENDIX OF CRL.A 1651/2023`** ``` PETITIONER ANNEXURES Annexure1 Annexure2 ``` ``` CERTIFIED COPY OF THE ORDER DATED 26/04/2023 IN MC62/2022 IN S.C.NO.593/2021 PENDING IN THE FILES OF THE ADDL. SESSIONS JUDGE V, KOTTAYAM TRUE COPY OF THE BAIL BOND DATED 22/02/2023 ```