RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal arises from the order passed by the Court below under S.446 of the Code of Criminal Procedure ('Code', for short) directing the appellant to pay penalty of Rs. 3,000/- and in default of payment of penalty and on exhausting the steps contained in S.421 of the Code to undergo imprisonment in civil Jail for a period of two months each.

(2.) The appellants are the sureties of an accused in a sessions case. They had executed a bond for Rs. 25,000/- for appearance of the accused before the sessions court. On one particular day, the accused failed to appear and hence the court issued non bailable warrant and notice against the sureties. A case was also registered against them and after giving sufficient opportunity to show cause, the appellants were directed to pay penalty. They were also directed to undergo imprisonment in civil jail for a period of two months. The said order is under challenge in this appeal filed under S.449 of the Code.

(3.) On going through the order under challenge, I find that the order is per se illegal. It is seen from the order under challenge itself that there was no "default" on the part of the accused, which resulted in forfeiture of bond. The court below has written in the order itself that the day on which the warrant was issued against the accused, though the accused did not appear, his counsel had filed an application stating that the accused was present before the court in the morning, but he left the court since he had stomach pain. But the said application was rejected without assigning any reason. It can also be seen from the proceedings that the accused had appeared before the court on the very next posting. In such circumstances, it cannot be said that the accused forfeited the bond as contemplated under S.446 of the Code.