This is an appeal filed under Section 449 of the Code of Criminal Procedure to challenge the order dated 27/08/2009 passed by the Additional Sessions Court, Thiruvananthapuram, in M.C.69/2008 arising out of Sessions Case No.545/2006. The appellants stood as sureties to the 2nd accused in S.C.545/2006 on the file of the Court below. Since the appearance of the accused No.2 was not secured, the Court below proceeded against the appellants who stood as sureties for the said accused and therafter passed an impugned order which reads as follows:
“ No counter filed. No explanation submitted, both the sureties remained absent today. No reason advanced for any remission. No application filed and hence imposed penalty of Rs.25,000/- (Rupees Twenty five thousand only) each which shall deposited within 30 days, failing which the same shall be recovered as if it were fine imposed under Criminal Procedure Code. Issue distress warrant on failure to deposit the amount within the said time. Call on 12.11.2009”
2. Heard, Sri.A.Ahzar, learned Counsel appearing for the appellant and learned Public Prosecutor. The learned Counsel appearing for the appellant would submit that this Court in the case Rajan v. State of Kerala reported in 2006(4) KLT 429 has held that notice that should be issued under Section 446(1) to show cause forefeited under bond shall not pay penalty or show cause why penalty shall not be paid and not to show cause whether there is any reason for forfeiture of accused in appearing on Court or producing accused and the impugned order is in violation of the principles laid down by this Court in the above said decision.
3. This Court in the case Rajan v. State of kerala reported in 2006(4) KLT 429 has held in Para 7 thereof that, in that case the Court below had called upon the sureties to show cause whether there is any reason for the failure of the accused in appearing in Court or in producing the accused in Court on a particular day. But that, Section 446 of the Code of Criminal Procedure does not provide issuance of such show cause notice.
On perusal of the Section 446(1) it can be seen that, 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.
Sub section 2 of Section 446 further provides that , 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.
4. On perusal of the impugned order, it is seen that the mandatory notice under Section 446(1) of the Code of Criminal Procedure recording the grounds as stated therein for calling upon the person bound by this bond to pay the penalty thereof or to show cause why it is not paid etc has not been made and notified. The appellants have specifically pleaded in ground 3 of the Appeal Memorandum that the appellants had not received proper notice and were not given sufficient opportunity before the Court below to submit their explanation etc. In this view of the matter the impugned order is set aside. The Matter in M.C.69/2008 in SC No.545/2006 is remitted to the Court below. The appellants will appear in person before the Court below on 27/01/2015 at 11 A.M. The Court below will follow the mandatory procedure contemplated under Section 446 of the Code of Criminal Procedure and offer reasonable opportunity to the appellants and take a decision thereon without much delay. It is made clear that in case the presence of the accused has already been secured before the Court below or if the Sessions case itself has been finally disposed of, then the Court below may consider whether further proceedings against appellants could be dropped.
With these observations and directions, the Criminal Appeal stands disposed as indicated above.
Sd/-
ALEXANDER THOMAS JUDGE iap