BABURAJ Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is directed against the order dated 01.09.2004, passed by the Additional Sessions Judge (Fast Track Court I), (for short, 'the court below') Thiruvananthapuram in MC No.08 of 2004 in S.C. No.298 of 1997.

(2.) Appellants stood as sureties for the second accused in S.C.No.298 of 1997. He was charge sheeted by the Circle Inspector of Police, Medical College Police Station along with six others for the offences punishable under Sections 302, 307, 120(b), 108, 109 r/w Section 34 of Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act, 1908.

(3.) The court below, framed charge against the accused for the offences for which he was charge sheeted by the police. The charge framed when read over and explained to him was denied by the accused. Accordingly the case was posted for trial. Summons have been issued to the witnesses of the prosecution for procuring their presence for the examination scheduled to be held from 21.06.2004 till 25.06.2004. The second accused did not appear before the court on 21.06.2004. His counsel filed a memo stating that his engagement for the accused is given up. The witness of the prosecution appeared before the court on that day, but due to abscondance of the accused, the examination could not be held. On subsequent dates scheduled for trial, the witnesses of the prosecution appeared but their examination could not be conducted for want of presence of the second accused. Thereafter the bail bond of the accused was forfeited and Non Bailable Warrant (for short 'NBW') was issued against him and notices were issued against the sureties. The NBW was returned unexecuted for the reason of non-location of the accused. The sureties who received the notices, appeared before the court on 11.08.2004. They filed application seeking time for production of the accused and the court granted time till 18.08.2004. The accused was not produced by the sureties on 18.08.2004 and thereupon miscellaneous case was directed to be registered by the court against the accused and his sureties under Section 446 Cr.P.C. The case was adjourned to 208.2004. On 208.2004, the sureties appeared before the court, but they did not produce the accused and therefore case was adjourned to 01.09.2004. On 01.09.2004 also, the sureties did not produce accused and therefore the court below imposed a penalty of Rs.10, 000/- (Rupees Ten thousand only) to the accused and a penalty of Rs.7, 500/-(Rupees seven thousand five hundred only) to each of the sureties and thus allowed the balance amount of the bail bond remitted in their favour. The court has also directed the recovery of the amount under Section 421 Cr.P.C in case of default in payment of penalty by the sureties, and to undergo imprisonment in civil jail for a period of six months each. Aggrieved by the said order, the sureties of the second accused have approached this court in the captioned appeal on several grounds as stated in the appeal memorandum.