BY AD v. P.CHANDY JOSEPH

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: G SUDHEER,PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

17.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [Crl.A. Nos.93/2024, 2027/2023] 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 17TH DAY OF JANUARY 2024 / 27TH POUSHA, 1945 CRL.A NO. 93 OF 2024 CRIME NO.16/2008 OF Adimaly Police Station, Idukki AGAINST THE ORDER/JUDGMENT SC 101/2009 OF III ADDITIONAL DISTRICT & SESSIONS COURT, THODUPUZHA / I ADDITIONAL MACT, APPELLANTS: THODUPUZHA 1 2 3 APPU AGED 64 YEARS S/O MANIKYAN, THOTTUMKARA HOUSE, NELLIPARA KARA, MANNAMKANDOM VILLAGE, DEVIKULAM TALUK, IDUKKI, PIN - 685561 RAJU AGED 62 YEARS S/O JOHN, KOCHUCHAZHVALALTH HOUSE, MACHIPLAVU KARA, MANNAMKANDOM VILLAGE, DEVIKULAM TALUK, IDUKKI, PIN - 685561 JOHN AGED 67 YEARS S/O JOSEPH, THUNDIKUZHAYIL HOUSE, 200 ACRE KARA, MANNAMKANDOM VILLAGE, DEVIKULAM TALUK, IDUKKI, PIN - 685561 BY ADVS. P.CHANDY JOSEPH C.K.VIDYASAGAR RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: G SUDHEER,PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

17.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [Crl.A. Nos.93/2024, 2027/2023] 3 K.BABU, J. -------------------------------------- [Crl.A. Nos.93/2024, 2027/2023] --------------------------------------- Dated this the 17th day of January, 2024 J U D G M E N T The challenge in these appeals is to the order in Crl.M.C.Nos. 07/2022 and 08/2022 in S.C. No. 101/2009 on the file of the III Additional District and Sessions Court, Thodupuzha/I Additional MACT, Thodupuzha imposing a penalty of Rs. 25,000/- each on the appellants. The appellants were the sureties of accused Nos. 1 and 2. The appellants in Criminal Appeal No. 93/2024 are the sureties of accused No. 1 and the appellants in Criminal Appeal No. 2027/2023 are the sureties of accused No. 2 in the Sessions Case.

2. The Sessions Court convicted accused Nos. 1 and 2 under Sections 8(2) and 55(g) of the Abkari Act and sentenced them for imprisonment and fine. The accused challenged the judgment of conviction in Criminal Appeal No.186/2010 before this Court. This court admitted the appeal and suspended the sentence on their executing bail bond for Rs.25,000/- each with [Crl.A. Nos.93/2024, 2027/2023] 4 two solvent sureties each for the like sum. The appellants stood sureties for accused Nos. 1 and 2. In Criminal Appeal No. 186/2010, as per the order dated 07.11.2022, this Court directed the Sessions Judge, Thodupuzha, to issue notice to the appellants as provided under Section 446 Cr.P.C. in terms of the order of this Court dated 28.01.2010. The Sessions Court issued notice to the appellants, pursuant to which the accused were produced by them before the Sessions Court. The Sessions Court proceeded against the appellants/sureties and imposed a penalty of Rs. 25,000/- each.

3. Heard the learned counsel for the appellants and the learned Public Prosecutor.

4. The learned counsel for the appellants submitted that the appellants had shown sufficient cause in response to the notice under Section 446 Cr.P.C. and that they had produced the accused in the case promptly before the court. The appellants had informed the court that the accused were living in the tribal area in the remote forest and the learned counsel could not contact them due to lack of communication facilities. The accused and the sureties were not aware of the date of the proceedings in the court. [Crl.A. Nos.93/2024, 2027/2023] 5

5. The learned counsel for the appellants further submitted that when the accused in this case filed an application seeking suspension of sentence before this Court they were granted bail holding that the accused were not at fault. The learned counsel for the appellants further submitted that, in view of the finding that the accused were not at fault, this Court directed the Additional Sessions Judge to consider accepting the same sureties to release the accused. It is submitted that the accused in this case were released on bail after accepting the present appellants as sureties.

6. Section 446 Cr.P.C. reads thus:- “Section 446. Procedure when bond has been forfeited. (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Explanation.--A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, [Crl.A. Nos.93/2024, 2027/2023] 6 for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: [Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.] (3) The Court may, [after recording its reasons for doing so], [substitute by Act 25 of 2005, Section 40 for”at its discretion”(w.e.f.23-6-2006.] remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.

7. As per Section 446(1) Cr.P.C., where a bond under the code is for appearance before the court and it is proved to the satisfaction of the court that the bond has been forfeited, the court shall record the grounds of such proof and may call upon any person bound by such penalty thereof and show [Crl.A. Nos.93/2024, 2027/2023] cause why it should not be paid. 7

8. In the present case, notice has been served under Section 446(1) Cr.P.C. on the appellants. They appeared before the court in response to the notice and presented sufficient reasons as to why they were not bound to pay the penalty. The forfeiture of the bond arises only when there is fault on the part of the accused in the case. The appearance of the accused was assured by the sureties. This Court, in order dated 15.12.2022 in Criminal Appeal No. 186/2010, has considered this aspect and observed thus :- “Appellants hail from Tribal areas and living in remote forest. It is submitted that the learned counsel could not contact them for want of communication facilities. In pursuance of the notice issued by the learned Additional Sessions Judge, however, the sureties promptly had produced the appellants before the Court. Taking into account those aspects, I am of the view that the appellants were not at fault and hence they are entitled to be released on bail on suspending the sentence, till the disposal of this appeal. The appellants shall be released on bail on each of them executing a bond for Rs.25000/- with two solvent sureties for the similar sum. The learned 3rd Additional Judge may consider to accept the same sureties.”

9. In the present case, this Court has held that the accused were not at fault. Therefore, the necessary conclusion is that the appellants/sureties showed sufficient [Crl.A. Nos.93/2024, 2027/2023] 8 cause for the non-appearance in court by the accused. Therefore, the penalty imposed by the court below against the appellants are liable to be set aside. i. Hence, the appeal is allowed. ii. The order imposing penalty in Crl.M.C. No. 8/2022 and Crl.M.C No. 7/2022 in Sessions Case No.101/2009 shall stand set aside. iii. The appellants are exonerated from the liability. Sd/- K.BABU, JUDGE [Crl.A. Nos.93/2024, 2027/2023] 9 APPENDIX OF CRL.A 2027/2023 PETITIONER ANNEXURES Annexure A1 Annexure A2 A TRUE COPY OF THE ORDER DATED 15.12.2022 IN CRL. M APPEAL NO.1/2022 IN CRL. APPEAL NO.186/2010 OF THE HON'BLE HIGH COURT OF KERALA CERTIFIED COPY OF THE ORDER DATED 29.11.2022 IN CRL.M.C.NO. 8/2022 IN S.C.NO.101/2009 OF THE 111RD ADDL. SESSIONS COURT , THODUPUZH [Crl.A. Nos.93/2024, 2027/2023] 10 APPENDIX OF CRL.A 93/2024 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE ORDER DATED 15.12.2022 IN CRL. M APPEAL NO.1/2022 IN CRL. APPEAL NO.186/2010 OF THE HON'BLE HIGH COURT OF KERALA //True copy // PA to Judge