GOPALAKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants are counter petitioners 1 and 3, against whom and another the impugned order under Section 449 I.P.C. has been passed. The 1st appellant was the 2nd accused in a prosecution for offences punishable, inter alia, under Section 302 read with Section 34 I.P.C. The learned Sessions Judge on 11.09.2006 directed issue of summons to all the witnesses in three sets to appear for examination on 25.09.2006, 27.09.2006 and 29.09.2006. On 25.09.2006 when the matter came up for trial, the 2nd accused, i.e., the 1st appellant herein, was absent. Not even the courtesy of filing an application before Court was shown. The witnesses were present on 25.09.2006. The learned Sessions Judge, in these circumstances, had to discontinue trial, send back the witnesses who had appeared and stop the witnesses who were summoned to appear on future dates. The 1st appellant/2nd accused continued to be absconding for three postings - 25.09.2006, 12.10.2006 and 25.11.2006. He surrendered on 07.12.2006. He continued in custody for some period of time. He was eventually released on bail on/after 18.01.2007. The learned Sessions Judge, by the impugned order passed under Section 449 I.P.C. directed the 1st appellant/2nd accused and both the sureties to pay an amount of Rs. 15,000/- as penalty. As against sureties, it was directed that if recovery is found to be impracticable, they shall undergo imprisonment in civil prison for a period of six months.

(2.) The appellants claim to be aggrieved by the impugned order. What is their grievance? The learned counsel for the appellants only submits that the 1st appellant/2nd accused was laid up and that is why he could not appear before the Court from 25.09.2006 to 07.12.2006. For this, he had paid the price by being detained in custody from 07.12.2006 to 18.01.2007, submits the learned counsel. Leniency may be shown, the penalty amount may be reduced, prays the learned counsel for the appellants. No other contentions are raised.

(3.) We are unable to agree with the learned counsel. By choosing to remain absent on 25.09.2006, the appellant had upset the schedule for trial fixed by the Court. He had also caused inconvenience to a number of witnesses. Sufficient reasons are not shown to exist for the absence of the 1st appellant/2nd accused on 25.09.2006. Courts must frown upon such conduct of indictees choosing to remain absent without any representation on dates to which the cases are peremptorily posted for trial. The conduct has to be disapproved in unmistakable terms. We are not persuaded to agree with the learned counsel for the appellants that imposition of a penalty of Rs. 15,000/- on all the three - the accused and the two sureties - is in any way excessive. No leniency need be shown by us, we are satisfied. It will be misplaced sympathy for this Court to invoke its appellate jurisdiction under Section 449 Cr.P.C. now.