IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940
Crl.MC.No. 8244 of 2018
CC 816/2016 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,
CRIME NO. 619/2014 OF ERNAKULAM TOWN NORTH POLICE STATION
ABDUL NAZEER, AGED 51 YEARS,
S/O.K.K.HAMEED, THECHAYIL HOUSE,
ARAKKAPPADY P.O., PERUMBAVOOR.
SRI.AVINASH P RAVEENDRAN
THE STATE OF KERALA,
REP. BY SUB INSPECTOR OF POLICE,
E.T.NORTH POLICE STATION, ERNAKULAM,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM – 682 031.
SRI. T. R. RENJITH, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
04.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 8244 of 2018 2
The petitioner herein is the accused in C.C.No.816 of 2016
pending on the files of the Additional Chief Judicial Magistrate,
Ernakulam. He is being prosecuted by his wife under Section 498A
of the IPC.
2. For his failure to appear before the learned Magistrate on
11.10.2018, the learned Magistrate passed an order directing the
forfeiture of the bail bond executed by the accused. Non-bailable
warrant was issued to the accused and notice was ordered to the
sureties after initiating proceedings under Section 446 of the Cr.P.C.
The above order is under challenge in this proceeding.
3. The learned counsel appearing for the petitioner submitted
that, on 10.08.2018, the de facto complainant was absent and Non
Bailable Warrant was issued for securing her appearance and the
case was posted to 12.09.2018. On that day, the petitioner was
personally present in court, but as his counsel was indisposed, he
sought for an adjournment, which was granted on payment of costs
of Rs.2,000/- and the case was posted to 11.10.2018. Unfortunately,
the date of posting was mistakenly noted as 10.11.2018 and hence,
Crl.MC.No. 8244 of 2018 3
neither the petitioner nor his counsel was present on 11.10.2018, on
which day the case was called. The learned Magistrate proceeded to
pass the order impugned.
4. I have heard the learned Public Prosecutor and have
considered the submissions advanced.
5. I am of the view that the procedure adopted by the
learned Magistrate is not proper and the order cannot be allowed to
stand. The learned Magistrate has erred in cancelling the bail
granted to the petitioner without hearing him. Of course, under
Section 437 (5) of the Cr.P.C., the learned Magistrate is entitled to
cancel the bail which was granted to the accused. But, it is settled
law that before passing such an order, the learned Magistrate was
required to issue notice to the accused, so as to afford him an
opportunity to explain as to why the bail should not be cancelled.
Such course has not been adopted by the learned Magistrate in this
case. Therefore, the impugned order to the extent of cancellation of
the bail, deserves to be set aside.
6. Insofar as the registration of the case against the
petitioner under Section 446 of the Cr.P.C is concerned, I am of the
Crl.MC.No. 8244 of 2018 4
considered view that the mere failure to appear before the Court, in
the absence of any willfulness on the part of the accused, would not
amount to “a breach” in terms of Section 446 of the Code of
Criminal Procedure. Manifestly, there has to be an animus on the
part of the accused not to abide by or comply with, the terms and
conditions of the bond. Such animus alone makes the failure of the
accused to appear, a breach in terms of Section 446 of the Code.
Such animus on the part of the accused could be ascertained only
after affording sufficient opportunity to the accused. There may be
several reasons which prevented the accused from appearing before
Court on the date of posting. Such failure of the accused to appear
before the Court on that particular date of hearing, without an
explanation being sought, can never be treated as breach in terms
of Section 446 of the Code. On receipt of notice, if the accused
satisfies the Court that he was prevented from appearing before the
Court due to a valid reason, the Court may not record such
satisfaction holding that the accused had committed a breach of
bond. Such proof or disproof of animus can be arrived at only after
sufficient opportunity to the accused / surety. There could have
been a justifiable reason for the absence of the accused on that
Crl.MC.No. 8244 of 2018 5
particular day. May be, on his way to the court hall, he had met with
an accident or he may have any other justifiable reason. Therefore,
before recording such satisfaction, notice to the accused is necessary
and further enquiry should also follow. On such enquiry, if the
learned Magistrate is satisfied on proof that there was breach of the
terms of the bond then, after recording the satisfaction that breach
has taken place, the court below could have concluded that the
accused has committed breach of the terms of the bond. In the
instant case, for the absence of the accused on a single day, the
learned Magistrate has penalised the petitioner by all modes
possible. I respectfully concur with the observations of Justice S.
Nagamuthu in Prabhakaran v. State [2010 Crl.L.J 3175]. I am,
therefore, inclined to intervene and set aside the impugned order.
7. Though the learned Magistrate was justified in issuing a
non-bailable warrant to the accused, in the peculiar facts and
circumstances, I direct the petitioner to appear before the learned
Magistrate on 12.12.2018 and file an application for recalling the
warrant. If any such application is filed, the warrant issued as above
shall stand recalled. The bail granted to the petitioner shall stand
revived and the proceedings initiated under Section 446 of the Cr.P.C
Crl.MC.No. 8244 of 2018 6
shall stand set aside. The court below is directed to proceed with
the case in accordance with law and procedure.
RAJA VIJAYARAGHAVAN V.,
//TRUE COPY// P.A.TO JUDGE
Crl.MC.No. 8244 of 2018 7
ANNEXURE A1 CERTIFIED COPY OF THE ORDER/PROCEEDINGS
DATED 11/10/2018 IN C.C.NO.816 OF 2016 OF
THE HON’BLE ADDITIONAL CHIEF JUDICIAL
MAGISTRATE COURT, ERNAKULAM.
ANNEXURE A2 A TRUE COPY OF THE PROCEEDINGS IN C.C.NO.816
OF 2016 OF THE HON’BLE ADDITIONAL CHIEF
JUDICIAL MAGISTRATE COURT, ERNAKULAM FROM
10/08/2018 TO 11/10/2018.