Rabiya, Ibrahim and Sahira v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3 of 2007() --------------------------CRA.427/2006 of SESSIONS COURT, ALAPPUZHA MC.55/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANTS 2,3 & 4/COUNTER PETITIONERS 2,3 & 4. -------------------------------------------------------------------------------------- 1. RABIYA, D/O.CHELLAPPA RAWTHER, VADAKKAL VEEDU, WARD NO.14, MANNARKKAD PANCHAYATH, PALAKKAD. 2. IBRAHIM, S/O.KUNJAYAMBU, VALLIKKODAN VEEDU, WARD NO.21, PALAKKAD MUNCIPALITY, PALAKKAD. 3. SAHIRA, W/O.BASHEER, THAZHATHETHIL VEEDU, WARD NO.12 OF PALAKKAD MUNCIPALITY, PALAKKAD. BY ADV. SRI.PRAKASH P.GEORGE RESPONDENT(S): RESPONDENT/PETITIONER. -------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008, ALONG WITH CRRP 4/2007 THE COURT ON 11/12/2008 PASSED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR,J.** =========================== Crl.R.P. NO.3 & 4 OF 2007 =========================== Dated this the 11[th] day of December,2008 ORDER Revision petitioners in Crl.R.P.3/2007 are counter petitioners 2 to 4 who were the sureties to the accused 2 and 3 in C.C.536/2005 on the file of Judicial First Class Magistrate-I, Alappuzha. Revision petitioners in Crl.R.P.4/2007 are the counter petitioners in M.C.54/2005, who were the sureties to the accused in C.C.537/2005 on the file of Judicial First Class Magistrate-I, Alappuzha. Revision petitioners executed a bond in C.C.536/2005 for Rs.7000/- agreeing to pay on their failure to produce the accused, as and when called for. When the accused failed to appear and inspite of notice they did not produce the accused, learned Magistrate initiated proceedings under section 446 of Code of Criminal Procedure by registering M.C.55/2005. Notice was issued to the revision petitioners why the bond amount of Rs.7000/- shall CRRP 3 & 4 of 2007 2 not be realised from them as penalty. Petitioners did not appear or showed any cause. Learned Magistrate therefore directed to pay penalty of Rs.7000/- each. In C.C.537/2005 revision petitioners executed a bond for Rs.10,000/- in respect of second accused and a bond for Rs.7000/in respect of third accused agreeing to produce them as and when called for. When the accused failed to appear and inspite of notice, sureties did not produce the accused learned Magistrate initiated proceedings under section 446 of Code of Criminal Procedure registering M.C.54/2005. Show cause notice was issued to the revision petitioners why the amount covered by the bonds shall not be released from them. On their failure to appear or show any cause, learned Magistrate as per order dated 8.12.2005 directed revision petitioners 1 and 2 to pay Rs.10,000/- and revision petitioners 3 and 4 Rs.7000/- as shown in the bond, as penalty. Revision petitioners in Crl.R.P.4/2007 challenged the order in M.C.54/2005 before Sessions Court, 3 CRRP 3 & 4 of 2007 Alappuzha in Crl.A.426/2006. Revision petitioners in Crl.R.P.3/2007 challenged the order in M.C.55/2005 in Crl.A.427/2006 before the same Court. Learned Sessions Judge heard the appeals separately and found that no procedural irregularity was committed by the learned Magistrate. Still the order passed by the Magistrate was modified to Rs.3,500/- each in M.C.55/2005 and Rs.5000/- each as against revision petitioners 1 and 2, Rs.3500/- each as against revision petitioners 3 and 4 in M.C. 54/2005. The orders are challenged in these revision petitions. 2. Learned counsel appearing for revision petitioners was heard. 3. Learned counsel relying on the decision of a learned single Judge of this court in **Usman v. State of Kerala (2005(3)KLJ 420)** argued that the orders passed by the courts below are vitiated by procedural irregularity. It was argued that no notice was issued as mandated under the section and CRRP 3 & 4 of 2007 4 therefore the orders passed by the courts below are not sustainable. 4. On hearing the learned counsel and on going through the records of the courts below, I cannot agree with the submission of the learned counsel that there was procedural irregularity or violation. The proceedings of the courts below as well as the records show that revision petitioners in Crl.R.P.3/2007 were the sureties to accused 2 and 3 in C.C.536/2005. The records show that they executed a bond for Rs.7000/- each. It is also clear that when the accused failed to appear the sureties were called upon to produce the accused and still the accused neither appeared nor were produced before the Magistrate. It is on satisfying that the bond has been forfeited, Magistrate initiated proceedings under section 446 of the Code of Criminal Procedure recording reasons and M.C.55/2005 was registered and show cause notice was issued. The records show that revision petitioners were served with the notice as CRRP 3 & 4 of 2007 5 provided under section 446(1) of Code of Criminal Procedure directing them to appear and show cause why penalty shall not be imposed. It is after their failure to appear and show cause learned Magistrate imposed the penalty. When the revision petitioners were served with a notice to show cause why the penalty as shown in the bond shall not be realised, they did not appear or shown any cause. 5. Similarly records and the proceedings in M.C.54/2005 establish that the accused in C.C.537/2005 failed to appear and inspite of notice to the revision petitioners they did not produce the accused. It is thereafter learned Magistrate initiated proceedings under section 446 of Code of Criminal Procedure. M.C.54/2005 was registered and notice was issued to show cause why the amount fixed in the bond shall not be realised as penalty. The records show that notice was served on the revision petitioners. They have no case that they either appeared or showed any cause before the learned Magistrate. It is in such circumstance, CRRP 3 & 4 of 2007 6 learned Magistrate imposed the penalty in both M.C.54/2005 and M.C.55/2005. Learned Sessions Judge in the appeals though satisfied that there was no procedural irregularity, took a lenient view and reduced the penalty by 50%. In such circumstance, when there was no procedural irregularity and opportunity was granted to the revision petitioners to show cause why the penalty shall not be imposed and they did not appear or showed any cause, I find no reason to interfere with the orders directing payment of penalty as modified by the learned Sessions Judge. Revision Petitions are dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006