Johnson s/o Daniel Charuvila & Shailendran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937 CRL.A.No. 293 of 2015 () ------------------------(AGAINST THE ORDER IN MC 32/2014 IN SC 592/2013 of ADDITIONAL SESSIONS (ABKARI ACT CASES), KOTTARAKKARA ## APPELLANTS/COUNTER PETITIONERS 2 & 3: --------------------------------------------------------------- 1. JOHNSON, S/O.DANIEL CHARUVILA VEEDU, PERUMTHOYIL, KARAVOOR P.O PIRAVANTHOOR, KOLLAM DISTRICT. 2. SHAILENDRAN, S/O.DIVAKARAN CHARUVILAPUTHAN VEEDU, KARAVOOR P.O PIRAVANTHOOR KOLLAM DISTRICT. BY ADVS.SRI.S.RAJEEV SRI.K.V.VINODKUMAR SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY RESPONDENT/STATE: ------------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 682 031 (SC NO.592/2013 OF COURT OF ADDITIONAL SESSIONS (ABKARI ACT CASES) KOTTARAKKARA. BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.293 of 2015 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of January 2016 ## JUDGMENT The appellants were the second and third counter petitioners in M.C. No.32 of 2014 in S.C. No.592 of 2013 on the files of the Additional Sessions Court (Abkari Act Cases), Kottarakkara. 2. The appellants executed bond for the release of the accused in S.C.No.592 of 2013 on the files of the court below on bail. Thereafter, the accused did not appear before the court below. In the said circumstances, the court below issued notice to the appellants. Thereafter, the court below passed the following order:- Crl.A.293/2015 : 2 : “S1 and S2 served. Absent. Bail bond forfeited. Issue Distress Warrant to S1 and S2 (CPs 2 and 3) for realisation of Rs.25,000/- each towards the forfeited bond amount. For report. Adjourned to 31.01.2015” 3. The learned counsel for the appellants has argued that the order passed by the court below was not a speaking order and hence, the same cannot be sustained. It has been further argued by the learned counsel for the appellants that after the forfeiture of the bail bond, no notice was issued or served on the appellants as provided under Section 446(i) of the Code and in the said circumstances also, the order impugned cannot be sustained. The learned Public Prosecutor has supported the Crl.A.293/2015 : 3 : learned counsel for the appellants and submitted that show cause notice should have been issued as provided under Section 446(1) of the Code after forfeiting the bond and since no such notice was issued, the order impugned cannot be sustained. The learned Public Prosecutor relied on the decision of this Court in **Thundichi v. State of Kerala** (2009 (4) KLT 148) to buttress his argument. In **Thundichi** (supra), a learned Single Judge of this Court held in paragraph 3 thus:- “It is argued by learned counsel that going through the order passed by the learned Assistant Sessions Judge, notice was issued to the petitioners only before forfeiture of the bond and after such forfeiture, no notice as contemplated under S.446 of the Code was issued. That deprived petitioners of an opportunity to show cause against imposition of penalty. Learned counsel has placed reliance on the decision of the Supreme Court in _Ghulam Mehdi v. State of Rajasthan_ (AIR 1960 SC 1185). There, referring to Crl.A.293/2015 : 4 : the provisions of S.514 of the old Code, it was held that before imposition of penalty notice has to be issued to the sureties. In this case, though it is seen from the copy of notice produced by petitioners in this revision that petitioners were called upon to show cause against imposition of penalty but that was before forfeiture of the bail bond. Petitioners are correct in contending that they were not given notice after forfeiture of the bond.” In this case, show cause notice was issued to the appellants against the imposition of penalty. However, that notice was issued before the forfeiture of the bond as is evident from the order impugned. No show cause notice was issued to the appellants after the forfeiture of the bail bond. 4. The Division Bench of this Court in **Thundichi v.** **State of Kerala** (2009 (4) KLT 67) held that as and when the accused is not present in the court, the forfeiture of the bail bond is automatic. However, in this case, even though notice was issued, the learned Sessions Judge Crl.A.293/2015 : 5 : ordered to forfeit the bail bond only after serving the notice on the appellants. Therefore, there was no compliance of issuance of show cause notice subsequent to the forfeiture of the bond as provided under Section 446(1) of the Code as held by the Division Bench in **Thundichi** (supra). Therefore, the order impugned cannot be sustained. 5. The learned counsel for the appellants has submitted that the accused surrendered before the court after the passing of the order impugned and hence, the appellants are entitled to be discharged. The learned counsel for the appellants has further submitted that the accused was undergoing treatment at the de-addiction centre to get him relieved from alcoholic drink and it was only because of that reason that the accused could not Crl.A.293/2015 : 6 : appear before the court as directed by the court and in the said circumstances also, the appellants are entitled to be discharged. The above contentions of the appellants cannot be accepted to discharge the appellants from the liability under the bond. However, the above contentions can be taken into consideration to decide the quantum of penalty to be imposed on the appellants. In the result, this appeal stands allowed and the order of the court below stands set aside. The matter is remitted to the court below for fresh consideration and decision in the matter after issuing notice to the appellants as contemplated under Section 446(1) of the Code to show cause against imposition of penalty. Crl.A.293/2015 : 7 : The appellants shall appear before the court below in person on 1.3.2016 to accept the show cause notice. Needless to state that the appellants are entitled to reimbursement of the amount, if any, deposited by the appellants before the court below pursuant to the order of this court, on filing application in this regard before the court below, after the appearance of the appellants in person before the court below as directed above. sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/14.1.2016_ _// True Copy // PA to Judge_