Vaisak P.R. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944 CRL.MC NO. 8700 OF 2022 SC.NO.73/2020 OF ADDITIONAL SESSIONS COURT – II, (SPECIAL COURT ``` ## **`(NDPS), THODUPUZHA`** ## **`PETITIONER/ACCUSED-A2:`** ``` VAISAK P.R., AGED 25 YEARS S/O.RAJAN, PERUMASSERIL (AVINASH BHAVAN), ERUMAKKADU P.O, VALLANA MURI, KIDAGANOOR VILLAGE KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. PIN - 689532 BY ADVS. AJITH MURALI MOHANAN M.K. ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN – 682031 BY SR.PP-SRI.RENJIT GEORGE ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 8700 OF 2022 2 ``` ## ORDER This is a petition, filed under Section 482 of the Code of Criminal Procedure (for short ‘ the Cr.P.C’ hereinafter). The prayers in this petition are as under: i) Issue a direction to the Additional Sessions Court-II (Special Court, NDPS), Thodupuzha to consider the petitioner's bail application in S.C. No 73/2020 on the date of surrender itself; - ii) Issue a direction to keep in abeyance the non-bailable warrant pending against the petitioner in S.C. No 73/2020 of Additional Sessions Court-II (Special Court, NDPS), Thodupuzha till he surrenders before the court below within a time frame as directed by this Hon'ble Court and - iii) Issue such other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. A report, dated 2.12.2022, forwarded by the learned Special Judge also has been considered. It is submitted by the learned counsel for the petitioner that the petitioner, who is the 2[nd] accused in Crime No.43/2018 of Peerumade Excise Range, now pending as S.C.No.73/2020 before the Special Court under the ## **`CRL.MC NO. 8700 OF 2022 3`** Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’ hereinafter), who alleged to have committed offence punishable under Sections 20(b)(ii)(B), 29 and 8(c) of the NDPS Act, was granted bail by this Court, as per order in B.A.No.8716/2018, dated 4.1.2019. Thereafter, the petitioner went abroad to meet the financial stringency occurred on account of cancer treatment of his father and in the meantime, the court below ordered non-bailable warrant against him. It is submitted by the learned counsel for the petitioner that the petitioner is ready to surrender before the court on 9.12.2022 and file fresh bail application. Therefore, there shall be a direction as prayed for. 4. The learned Public Prosecutor also conceded the factual events as stated by the learned counsel for the petitioner. 5. In the report, the learned Special Judge reported that, on 7.12.2021, the accused No.2/petitioner did not appear before the court and nobody represented him. Hence, bailable warrant was issued. Later, it was informed by the Excise Inspector that the petitioner went abroad. Thereafter, notices were served on the sureties and the sureties reported, through their lawyer, that the petitioner went abroad. It is reported further that M.C.No.22/2022 was registered against the sureties under Section 446 of the Cr.P.C. Thus, it appears that even though the learned Special Judge registered proceedings under Section 446 of the ## **`CRL.MC NO. 8700 OF 2022 4`** Cr.P.C. for forfeiture of bond, whether non-bailable warrant is pending against the petitioner is not discernible from the report. Since there was forfeiture of bond, the warrant shall be non-bailable as submitted by the learned counsel for the petitioner. 6. Now, the petitioner wants to surrender before the court on 9.12.2022 and his limited prayer in this petition is to direct the learned Special Judge to consider the bail application, if any, filed on the date of surrender itself. Therefore, there shall be a direction to the learned Special Judge to consider the bail application, if any, filed by the petitioner on the date of his surrender, on the same day itself, on merits. 7. It is reported by the learned Special Judge that the sureties showed a reasonable cause for the non appearance of the petitioner and they promised to produce him before the court. I do not think that the procedure adopted by the learned Special Judge is legally correct. On forfeiture of bond, the sureties and the accused have no other option other than to pay the penalty, unless the accused died before forfeiture of bond or other accused is fully incapacitated to appear before the court. Non appearance of an accused in terms of the bond he executed with sureties, after leaving the jurisdiction of the court is not a sufficient explanation for the accused. Although Section 446(3) of the Cr.P.C. empowers the court to ``` CRL.MC NO. 8700 OF 2022 5 ``` grant remission and the said power shall be exercised judicially and for good reasons. Remission shall not be avoidance of payment of penalty. But, it may be for reduction of the penalty. The legal position is well settled. 8. In the decision reported in Thundichi and Another v. State of Kerala [2009 (4) KHC 76] , a Division Bench of this Court, while answering a reference, held as follows: “Doubting the correctness of the law declared by the learned Single Judge in Usman v. State of Kerala, 2005 (4) KLT 348 and Geetha v. State of Kerala, 2006 (3) KLT 960, the matter was referred to the Division Bench. Division Bench on a consideration of the provisions of the Code of Criminal Procedure was of the view that mere absence of the accused for whatever reasons, wilful or not would result in forfeiture of bond and such forfeiture is automatic. Answering the reference, the Court held: On perusal of the provision and the Form No. 45 of the bond, it is clear that as soon as there is default by the accused in not keeping himself present in the Court on the date of trial, the bond gets automatically forfeited. The law does not provide any requirement of the satisfaction to be arrived at by the Court as to whether the absence is wilful or not. The question whether the absence is wilful or not is immaterial at that stage, since the accused and the surety are together bound themselves to have the presence of the accused on that day and as such mere absence itself would entitle the bond to be forfeited. The latter part of Form 45 if looked into in this regard and especially the words 'in case of his making default herein, I hereby bind myself to forfeit to Government the sum of rupees...... .' indicate that both ## **`CRL.MC NO. 8700 OF 2022 6`** the accused and the surety are aware of the fact that mere absence, for whatever reasons, wilful or not, by the very absence of the accused would result in only one situation, viz., forfeiture of the bond. As such, for this purpose, in our view, there need not be any opportunity given to the surety or any proof or evidence in respect of the explanation of the accused or the surety as to whether the absence was wilful or not need not be gone into.” 9. That apart, in the decision reported in Mohammed Kunju and another v. State of Karnataka [AIR 2000 Supreme Court 6] , the Apex Court considered the impact of Section 446 of the Cr.P.C. and held that if there is forfeiture of the bond executed by the surety due to the default of the accused in making appearance before the Court it is open to the Court concerned to resort to the steps contemplated in Section 446 of the Code as against the sureties, besides the accused himself. Further, it was held as under: “No doubt Section 446(3) of the Code empowers the Court to grant such remission. It is within the discretion of the Court to grant remission and to decide the extent of the remission. Such a discretion must be exercised judicially and for good reasons. Learned counsel cited the decisions of this Court in Madhu Limaye v. Metropolitan Magistrate, 1984 Supple SCC 699. A three Judge Bench of this Court considered the plea advanced by a surety who was proceeded against as the accused some foreign nationals escaped from India. They were students charged with ``` CRL.MC NO. 8700 OF 2022 7 ``` offences of "trivial nature" in 16 cases altogether. This Court held that in such circumstances "the ends of justice will be met by imposing a token penalty of Rs.100". In the present case, though the offences charged against the foreign national are not trivial they are nevertheless not very serious comparatively. The accused slipped out of the country without anybody's knowledge and thereby rendered himself beyond the reach of the appellant. The Court could have imposed the condition to surrender his passport as a measure to prevent him to escape out of India. There is no allegation that the appellant had any remote scent that the accused was preparing to escape from India, nor that he had connived with the accused jumping out the bail.” Therefore, in the facts and circumstances of the case and in view of the settled law, no question of releasing the sureties without paying the penalty amount and therefore, the learned Special Judge is directed to pass orders in the M.C., on merits, in view of the legal position and impose penalty against the sureties as well as the accused. Sd/A. BADHARUDEEN JUDGE Bb ``` CRL.MC NO. 8700 OF 2022 8 ``` ## **`APPENDIX OF CRL.MC 8700/2022`** |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE-A`|`A TRUE COPY OF THE ORDER IN B.A.NO.8716/2018`| ||`DATED 04.01.2019 OF THIS HONOURABLE COURT.`| |`ANNEXURE-B`|`A TRUE COPY OF THE TREATMENT RECORD OF THE`| ||`PETITIONER'S FATHER ISSUED BY REGIONAL CANCER`| ||`CENTRE, THIRUVANANTHAPURAM DATED 23.09.2002.`| |`ANNEXURE-C`|`A TRUE COPY OF THE TREATMENT RECORD OF THE`| ||`PETITIONER'S FATHER ISSUED BY REGIONAL CANCER`| ||`CENTRE, THIRUVANATHAPURAM DATED 11.07.2015.`| |`ANNEXURE-D`|`A TRUE COPY OF THE AFFIDAVIT SURETIES`| ||`SUBMITTED IN S.C. NO. 73 / 2020 OF THE`| ||`ADDITIONAL SESSIONS COURT-II (SPECIAL COURT,`| ||`NDPS), THODUPUZHA.`| |`ANNEXURE-E`|`A TRUE COPY OF THE RELEVANT PAGES OF THE`| ||`PASSPORT OF THE PETITIONER.`| |`ANNEXURE-F`|`A TRUE COPY OF THE RETURN TICKET OF THE`| ||`PETITIONER FROM ABROAD.`| |`RESPONDENT’S`<br>`ANNEXURES`|<br>`NIL`| //TRUE COPY// PA TO JUDGE