BINU Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant is one of the sureties for the 34th accused in S.C No.1177/2007 on the file of the Court of Additional Sessions Judge, Neyyattinkara wherein the offences involved are under Sections 120B of the Indian Penal Code, Section 8(2), 55(a), 57(a) and 58 of the Kerala Abkari Act. As the said accused failed to appear during the trial of the case, the court below instituted M.C No.17/2013 against the sureties, two in number, including the present appellant, under Section 446 of the Code of Criminal Procedure. As there was no proper explanation for not producing the accused for whom the appellant was one of the sureties, by order dated 17.10.2013 in M.C No.17/2013 (in S.C No.1177/2007 of the Court of Additional Sessions Judge, Neyyattinkara) the appellant as well as other surety were directed to pay penalty of Rs.25,000/- under Section 446 of the Code of Criminal Procedure. It is against the above order the present appeal is filed under Section 449 of the Code of Criminal Procedure by the appellant who is CP No.1 in M.C No.17/2013.

(2.) Heard the learned counsel for the appellant and the Public Prosecutor.

(3.) The learned counsel for the appellant vehemently submitted that the appellant along with other surety stood for taking out the 34th accused on bail during the crime stage who failed to appear subsequently as he had absconded, for which the appellant is not responsible. It is the further contention of the learned counsel that when the appellant came to know that the said accused was absconding, at his instance, the said accused appeared before the court and now he is in custody. Therefore the order of the court below imposing penalty of Rs.25,000/- upon the appellant is incorrect and illegal. On the other hand, the Public Prosecutor submitted that the court below issued the impugned order due to the negligence on the part of the appellant in producing the accused for whom he stood as one of the sureties and therefore, the court below is absolutely correct in imposing the penalty in exercise of the power under Section 446 of the Code of Criminal Procedure.