Partly allowed

Sukumaran v. State

Kerala HC25 Jun 2012Crl.Rev.Pet/1279/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a revision petition challenging an order imposing a penalty on a surety for failing to produce absconding accused persons. The court upheld the initiation of forfeiture proceedings but reduced the penalty amount.

What did the court decide?

The order confirming initiation of proceedings under Section 446(1) Cr.P.C. was maintained, but the penalty was reduced to Rs. 5,000 per accused.

Sukumaran Vs State — Bail and Remand | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934

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Crl.Rev.Pet.No. 1279 of 2012 ()

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IN CRA.171/2011 of II ADDL.D.C.,TRIVANDRUM IN CC.204/2008 of J.M.F.C.-I,TRIVANDRUM

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REVISION PETITIONER/APPELLANT/COUNTER PETITIONER(S):

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SUKUMARAN

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S/O.CHAMIKKANNU, RAVEENDRA VILASOM BUNGLOW HOUSE NO. 6/813, PERUMPAZHINJI, KULATHOOR NEYYATTINKARA.

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BY ADV. SRI.SHAJIN S.HAMEED

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RESPONDENT/RESPONDENT/COMPLAINANT(S):

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STATE OF KERALA

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REPRESENTED BY THE PUBLIC PROSECUTOR

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HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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C.T. RAVIKUMAR, J.

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Crl. R. P. No. 1279 of 2012

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-----------------------------------------Dated this the 25^th day of June, 2012

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ORDER

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This revision petition is filed against the order in Criminal Appeal No. 171/2011 of the Court of the Additional Sessions judge – II, Thiruvananthapuram. That appeal was under Section 449 of the Code of Criminal Procedure challenging the order passed by the learned Judicial First Class Magistrate Court–1 Thiruvananthapuram in M.C. No. 16/2011 in C.C. No. 204/2008. The accused persons in C.C. No. 204/2008 were absconding and there upon proceedings under Section 446 of the Code of Criminal Procedure were initiated against the petitioner and another who stood as sureties to the absconding accused persons. The petitioner was the first surety. Evidently, the matter was adjourned several times to enable the revision petitioner herein and the other surety to produce the accused. On their failure to produce the accused and upon satisfying by their conduct they had forfeited their bail bond proceedings under

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Crl. R. P. No. 1279 of 2012

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Section 446(1) Cr. P.C. were initiated. Accordingly, the bail bond cancelled and the sureties were found liable to pay an amount of Rs.50,000/- in respect of each of the accused. The appellate court set aside the penalty of Rs.50,000/- in respect of each of the accused while confirming initiation of the proceedings under Section 446 (1) Cr.P.C. The appellate, thereupon, imposed the penalty of Rs.15,000/- in respect of each of the two accused. It was that order which is now under challenge.

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I have heard the learned counsel for the petitioner and also the learned Public Prosecutor.

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It is not in dispute that the petitioner herein stood as first surety to the accused persons in C.C. No. 204/2008. It also not in dispute that in case of failure to produce the accused persons as and when required by the court, he was liable to pay the bond amount of Rs.50,000/- in respect of each of the two accused persons, going by the surety bond. The fact that the accused persons have absconded and their

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Crl. R. P. No. 1279 of 2012

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presence could be secured only after issuance of a non bailable warrant. The revision petitioner contended that he was absolutely unaware of the whereabouts of the accused persons who are nomads from Tamil Nadu. The appellate court considered the issue in the light of the decision of this court in Thundichi V State of Kerala reported in (2009 (4) KLT 67). It was held that recording of satisfaction, reason and proof at the stage of forfeiture of bond is not necessary as the mere absence of the accused on a particular date fixed for appearance that would result in automatic forfeiture of the bond. Evidently to enable the revision petitioner who stood as the first surety to produce the accused persons the case was adjourned several times and he had failed to secure their presence in terms of the bond executed by him. It is after consideration of the entire aspects in the light of the decision in Thundichi's case (supra) that the appellate court was passed the impugned judgment. The appellate court found no reason to interfere

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Crl. R. P. No. 1279 of 2012

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with the initiation of proceedings under Section 446(1) of the Cr. P.C. and accordingly, it was upheld. It is thus evident that there is concurrent finding to the effect that initiation of proceedings under Section 446(1) Cr.P.C. is required against the sureties including the revision petitioner.

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The appellate court went on to consider the question whether the penalty imposed is proper and justified. After considering the entire issues the appellate court found that some leniency has to be shown in the matter of imposition of penalty and accordingly fixed the penalty as Rs.15,000/- each.

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The learned counsel for the petitioner submitted that the petitioner is a physically handicapped person and he is a coolie. Having considered the orders of the courts below and considering the contentions in the petitioner in the light of the decision of this court 2009 (4) KLT 67, I do not find any error or illegality or impropriety warranting

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Crl. R. P. No. 1279 of 2012

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interference with the orders to the extent it relates to initiation of proceedings under Section 446(1) of Cr.P.C. The revision petitioner who stood as the first surety to the accused persons who are nomads from Tamil Nadu, cannot throw up his hands in despair stating that their whereabouts are not known to him, when called upon to produce them. The concurrent findings of the courts below with respect to the necessity of initiation of proceedings against the petitioner upon his failure to produce the accused under Section 446(1) of Cr.P.C., invites no interference. Accordingly it is hereby confirmed.

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The question now survives for consideration is whether there is any reason to interfere with the quantum of penalty. In Crl. M.A. 3504/2012 that was filed for condoning the delay in filing the revision petition the petitioner has stated that he was under treatment for some ailment on his right leg. Learned counsel for the petitioner submits that subsequently he was intimated that the right

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leg was amputated. Taking note of such circumstances, I am of the view that it calls for leniency. Accordingly, while confirming the order with respect to the initiation of proceedings against the petitioner under 446(1) of Cr.P.C. the penalty imposed on him by the appellate court is set aside and the same is modified as hereunder. The appellant is directed to pay a penalty of Rs.5,000/- in respect of each of the two accused persons and remission is granted in respect of the balance amount. Amount if any, deposited or realised already shall be adjusted towards the penalty imposed as per this order. In case of the failure on the part of the petitioner to pay the penalty in accordance with law further proceedings shall be initiated for recovery of the amount of fine in accordance with law.

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C.T. RAVIKUMAR, JUDGE

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/True copy/

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P. A. to Judge

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Sukumaran v. State

Case brief

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Sukumaran v. State

Case brief

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