ABDULLA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are sureties of an accused who face indictment, inter alia, for the offence punishable under S.436 I.P.C. The case was committed to the Court of Sessions. Subsequently after hearing the accused on the question of framing charges, the learned Sessions Judge came to the conclusion that no offence under S.436 I.P.C is made out and therefore sent the matter to the learned Chief Judicial Magistrate under S.228 Cr.P.C. Proceedings are pending before the learned C. J. M, submits the learned counsel for the petitioners. It is in this context that they have received Annexures-II & III notices issued under S.446 Cr.P.C to them, directing them to show cause. The petitioners instead of appearing before the learned Sessions Judge, have rushed to this Court with this application under S.482 Cr.P.C. According to them, they had not omitted to appear before the learned Sessions Judge and for omission to appear before the learned C. J. M, they are not liable to show cause before the Sessions Judge. This in short is the contention. Annexures-II & III do not make it very clear as to the date on which there was failure to appear.

(2.) It is certainly for the petitioners to appear before the learned Sessions Judge, from whom they received Annexures-II & III notices and explain to the learned Sessions Judge their contention that, action under S.446 Cr.P.C is not liable to be taken against them by the Sessions Court. These contentions will certainly have to be considered by the learned Sessions Judge. If there be no failure in appearance before the learned Sessions Judge, obviously proceedings under S.446 Cr.P.C cannot be taken before the learned Sessions Judge. The petitioners can appear through their counsel and raise their contentions by filing a written statement of defence. The learned Sessions Judge must consider the same and need insist on the personal appearance of the petitioners only if such personal appearance be necessary for the progress of the case.