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Abdul Nazeer vs The State Of Kerala on 4 December, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

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,
ERNAKULAM

CRIME NO. 619/2014 OF ERNAKULAM TOWN NORTH POLICE STATION

PETITIONER/ACCUSED:

ABDUL NAZEER, AGED 51 YEARS,
S/O.K.K.HAMEED, THECHAYIL HOUSE,
ARAKKAPPADY P.O., PERUMBAVOOR.

BY ADVS.
SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SMT.V.R.LAKSHMI
SRI.AVINASH P RAVEENDRAN
SRI.J.VISHNU DEVARAJ
SRI.K.M.FAISAL (KALAMASSERY)
SRI.P.U.VINOD KUMAR

RESPONDENT/STATE:

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

ORDER

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.

SD/-

RAJA VIJAYARAGHAVAN V.,
JUDGE
DSV/-

//TRUE COPY// P.A.TO JUDGE
Crl.MC.No. 8244 of 2018 7

APPENDIX
PETITIONER’S/S EXHIBITS:

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.

RESPONDENT’S/S EXHIBITS:

NIL

//TRUE COPY//

P.A.TO JUDGE

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