This is an appeal instituted under Section 449 of the Code of Criminal Procedure to impugn the order dated 07.05.2010 of the Court of Additional Sessions Judge (Adhoc-III), Kasargod in M.C.No.44/2010 registered in S.C.240/2009. The two appellants herein stood as sureties for accused 1 and 2 in S.C.240/2009 on the file of the Court below. During the pendency of the case before the court below, it was reported that the accused were absconding and to compel the presence of A1 and A2, bail bond executed by them and the sureties were forefeited and notices were issued to the appellants by the Court either to produce A1 and A2 or to issue show cause.
2. Since the accused were absent, the Court below found that the appellants are liable to face the proceedings under Section 446 of the Criminal Procedure Code. Accordingly it was ordered in the impugned order that the appellants are sentenced to pay a penalty of Rs.20,000/-(Rs.10,000/- x2) and that if the realisation of the penalty becomes ineffective, the appellants has to suffer simple imprisonment for a term of 2 months each. It is this order that is under challenge in this appeal.
3. Heard Sri.S.Jiji learned counsel for the appellant and the learned Public Prosecutor appearing for the respondent. It is submitted by the appellants that the 1st appellant is a very elderly person now aged more than 79 years and is suffering from old age ailments and the second accused is a coolie worker and both of them have no means to pay the high penalty amount imposed as per the impugned order.
4. It is further submitted that the second accused had already surrendered before the court below has been released on bail by that court after furnishing fresh sureties.
5. It is further submitted that during the pendency of this appeal, this Court as per Annexure A1 order dated 25/05/2011 rendered in Crl.M.C.1142/2011, has quashed the final report in the Crime No.436/2007 of Bekal Police Station and the cognizance taken thereon as well as the proceedings against Accused 1 and 2 in S.C.No.240/2009, on the file of the Court of Additional Sessions Judge (Adhoc-III) Kasargod. It is submitted that Annexure A1 order in Crl.M.C.1142/2011 has been passed on a Petition filed under Section 482 of Criminal Procedure Code before this Court by Accused 1 and 2 in the above said Sessions case. These aspets are not disputed by the respondents.
6. In this view of the matter as the entire impugned Criminal proceedings against accused 1 and 2 in the afore said Sessions case has already been quashed by this Court as early as on 25/05/2011, a lenient view could be taken in this case. Accordingly the impugned order dated 7/05/2010 passed by the Court below in M.C. No.44/2010 in S.C.240/2009 on the file of the Court of Additional Sessions Judge(Adhoc-III) Kasargod is set aside. The Criminal Appeal stands allowed as above.
Sd/-
ALEXANDER THOMAS, JUDGE iap