SANKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioners were the sureties to accused Nos. 1 and 2 in Crime No. 123/2002 of Mavelikkara Excise Range for offences punishable under S.8(1)(2) and S.55(a) of the Abkari Act. Both the accused persons were enlarged on bail during crime stage each of them on executing a bond for Rs.50,000/- with two solvent sureties each for the like sum. It was on 11/10/2002 that the petitioners became sureties for the accused. Subsequently, Judicial First Class Magistrate, Mavelikkara took cognizance of the offences and registered the case as CP 93/2004. While the 2nd accused appeared before the committal Court, the 1st accused did not appear before the committal Court. Subsequently, as per order dated 15/02/2005, the committal Court committed A2 alone to the Court of Session. Since A1 was absent, the case against him was refiled as CP No. 9/2005. The case against A2 was numbered as SC 377/2005 before the Sessions Court, Alappuzha and was made over to the Assistant Sessions Court, Mavelikkara. For the reason that the 1st accused was absent before the Assistant Sessions Court, proceedings were initiated against the revision petitioners, the sureties under S.446 CrPC. Subsequently as per order dated 15/10/2005, the Assistant Sessions Court directed each of the revision petitioners to pay the entire bond amount of Rs.50,000/- as penalty and also ordered that if the penalty amount was irrecoverable, they should suffer imprisonment in Civil Prison for three months each. An appeal preferred by the revision petitioner before the Additional Sessions Court II, Mavelikkara as Crl. Appeal No. 750/2005 was dismissed confirming the order passed by the Trial Court. Hence, this revision.

(2.) I heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor.

(3.) Admittedly, the 1st accused in the case has been absconding when the matter was pending before the committal Court and he did not appear before the committal Court which is the reason why the case against him was refiled. The case which was committed to the Court of Session was only with regard to the 2nd accused who alone appeared before the committal Court as well as the Assistant Sessions Court. While it was permissible to the committal Court to proceed against the sureties of the 1st accused for his absence before that Court, the Assistant Sessions Court could not have initiated proceedings against the sureties of the 1st accused merely for the reason that the 1st accused was absent before that Court. When the 2nd accused in the crime is the solitary accused in SC No. 377/2005 before the Assistant Sessions Court, there is no question of that Court treating the 1st accused absent. That Court also cannot be treated as the Court to which the case has been subsequently transferred within the meaning of S.446(1) CrPC. The case which has been committed to the Sessions Court is only the case involving the 2nd accused alone. The case against the absconding 1st accused is still before the committal Court and stand transferred to the Long Pending Register. Hence, while it is open to the committal Court to initiate proceedings against the sureties of the absconding 1st accused, the proceedings initiated by the Assistant Sessions Court against the sureties of the 1st accused cannot be justified in law. Accordingly, the order dated 15/10/2005 passed by the Assistant Sessions Court, Mavelikkara in MC No. 34/2005 in SC No. 377/2005 as well as the judgment dated 08/06/2007 in Crl. Appeal No. 750/2005 before the Additional Sessions Court, Mavelikkara are set aside. The proceedings initiated against the revision petitioners by the Assistant Sessions Court will stand dropped.