Remanded

Anilkumar v. State of Kerala

Kerala HC20 Jan 2016CRL.A/1607/2004

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Kerala examined the legality of forfeiture of a bail bond and initiation of a court case against a surety. The Court held that sufficient notice must be given to the surety to show cause before imposing penalty, citing Section 446 CrPC and precedents. The order against the second respondent-surety was set aside due to lack of notice, while proceedings aga

What did the court decide?

Proceedings against the appellant surety set aside; fresh notice to be issued to the first surety to dispose the matter within two months.

Anilkumar Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2016)

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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 P.D.RAJAN

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WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937

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CRL.A.No. 1607 of 2004 ( )

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AGAINST THE ORDER/JUDGMENT IN CRMC 4/2004 of ADDL. SESSIONS COURT (ADHOC), KOLLAM.

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APPELLANT(S)/2^nd RESPONDENT:

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ANIL KUMAR, LATHIKA BHAVAN, EAST MURI, KOLLAM.

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BY ADV. SRI.T.GOPALAKRISHNAN

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, EAST POLICE STATION KOLLAM THROUGH THE, PUBLIC PROSECUTOR HIGH COURT OF KERALA.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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LSN

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P.D.RAJAN, J.

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Crl.Appeal. No. 1607 of 2004

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---------------------------------------------- Dated this the 20^th day of January, 2016

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JUDGMENT

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The appellant is the second respondent in Crl.M.C. No. 4/2004 in S.C No. 474/04 of the Additional Sessions Court (Adhoc-I), Kollam, who is the second respondent in the above M.C. The appellant's case is that, he was surety to the 3^rd accused in S.C 474/04, which was charge-sheeted under Section 402 of the Indian Penal Code against five persons. The 3^rd accused after taking bail failed to appear in the trail court. In the circumstance, bail bond was forfeited, notice was issued to the sureties. The first surety is not available in the address and the notice was served to the second surety. In the circumstance, the learned Addl.Sessions Judge registered M.C No. 4/04 against three persons. The counter petitioners were directed to remit 10,000/- each as penalty. Being aggrieved by that order, appellant/2^nd respondent approached with this appeal.

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When this appeal was taken for hearing, there

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was no representation for the appellant. Adv.

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Crl.Appeal. No. 1607 of 2004 2

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T.Gopalakrishnan filed this appeal, thereafter, no

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appearance. In the circumstances, this Court appointed Adv.Indu.S as counsel to provide legal aid to the appellant.

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I heard Adv.Indu.S and the learned Public

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Prosecutor.

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She submitted that there was no sufficient notice to the appellant before imposing penalty, which is an illegality. Sec.446 of the Code of Criminal Procedure says :-

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“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,

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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,

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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.”

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Crl.Appeal. No. 1607 of 2004

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The learned counsel relied the decisions

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reported in Thundichi v.State of Kerala [2009(4) KLT 67], [2009(4) KLT 148] and Ghulam Mehdi v. State of Kerala [1960 KHC 740] . This Court in Thundichi v.

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State of Kerala held that:-

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“The Revision Petition was referred to the Division Bench doubting the correctness of decisions rendered in 2005(4)KLT 348 and 2006(3)KLT 960 as regards the forfeiture of the bond u/s 446. In the above decisions, it was held by a Single Judge that failure to comply with the requirements such as recording a finding as to the wilful default and non-recording the proof and consideration of same before forfeiture of bond is illegal. The Division Bench while overruling the said decisions held that there is no necessity of recording any satisfaction, reason and proof at the stage of forfeiture of bond, as the mere absence of the accused on the date fixed would automatically result in the forfeiture of the bond and the opportunity to explain the absence is provided under the later stage under S.446(2).” which was followed in 2009(4) KLT 148.

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The Apex Court in Ghulam Mehdi v. State of Kerala [1960 KHC 740] held that:-

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“This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice, why the amount should not be paid and if he fails to show sufficient cause only then can the Court

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Crl.Appeal. No. 1607 of 2004

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proceed to recover the money. In the present case the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed.”

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The above settled law show that before a surety

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becomes liable to pay the amount of the bond forfeited, it is necessary to give notice why the amount should not be paid. Here M.C was taken against the accused and the two sureties. Therefore registering a case against the accused in M.C 4/04 is unsustainable in law, on the other hand the Court can proceed against the sureties alone. After forfeiting the bond, notice was issued against the sureties. No notice was served upon the appellant since he was not in the station. In the circumstances, forfeiture of the bond against the appellant is unsustainable in law in view of the above said principles. In the circumstances, the proceeding initiated against M.C 4/04 and the accused is set aside. The learned Sessions Judge is directed to issue fresh notice to the first surety who is the

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Crl.Appeal. No. 1607 of 2004

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appellant in this case and dispose the matter as per law. Records show that proper notice was served on the second surety and I am not disturbing the proceeding initiated against the second surety.

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In the circumstances, the learned Addl.Sessions Judge is directed to issue fresh proceeding against the first surety and dispose the matter as per law within two months from the date of receipt of a copy of this judgment.

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P.D.RAJAN, Judge

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lsn

Anilkumar v. State of Kerala

Case brief

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Anilkumar v. State of Kerala

Case brief

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