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Madhya Pradesh High Court · body

2009 DIGILAW 213 (MP)

ROOP SINGH v. STATE OF M P

2009-02-12

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
Judgment ( 1. ) BY this petition under section 482 of the Cr. P. C, the applicant has prayed for not recovering the amount of Rs. 30,000/-as penalty and his discharge therefrom as directed by the Division Bench of this High Court in cri. Appeal No. 120/05 on 13. 02. 078. ( 2. ) THE question arose for consideration in this petition is whether the Criminal court has power under section 446 (3) of the Code of Criminal Procedure (For short the Code) to remit any portion of the penalty after forfeiture of surety (surety of the appellant) bond and call upon applicant to show cause as to why it should not be paid and if sufficient cause is not shown and penalty is not paid, the Court- may start recovery proceedings for recovery of penalty amount. ( 3. ) SECTION 446 of the code has been embodied in Chapter XXXIII regarding provisions as to bail and bonds. The order passed under section 446 of the Code are appelable under section 449 of the Code available in the same Chapter. Under the scheme of the Code of Criminal Procedure, it appears that Chapter XXXIII is an independent Chapter regarding provisions as to bail and bonds. Sections 436 to 439 are providing procedure and power of grant of bail in bailable and non-bailable offences by Judicial Magistrate First Class up to the High Court, and from sections 440 to 450 provide provision of amount of bond and reduction thereof, bond of accused and sureties, discharge from custody, power to order sufficient bail when first taken is insufficient, discharge of sureties deposit instead of recognizance, (permission to deposit cash amount or Government promissory Notes), provision when bond has been forfeited, cancellation of bond and bail bond, procedure in case of insolvency or death of surety and when a bond is forfeited, bond required from minor, appeal from orders under section 446 and power to direct levy of amount due of certain recognizance. ( 4. ) IT would be apposite to reproduce the relevant provision of section 446 of the Code for convenience which is extracted herein-below:- "446. Procedure when bond has been forfeited;- (1) Where a bond under this code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that. ( 4. ) IT would be apposite to reproduce the relevant provision of section 446 of the Code for convenience which is extracted herein-below:- "446. Procedure when bond has been forfeited;- (1) Where a bond under this code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that. Court or any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. B Explanation:- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: [provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months. ] (3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. ( 6. ) NOW the question is after passing of the order to pay penalty and commencement of recovery proceedings whether the Court has power to remit any portion of the penalty or not. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. ( 6. ) NOW the question is after passing of the order to pay penalty and commencement of recovery proceedings whether the Court has power to remit any portion of the penalty or not. This question came for consideration before this High Court in the case of Suwalal V/s State of M. P. , (1957 MPLJ. 330), Roop singh V/s State of M. P. (1993 (2) W. N. 201), Rajendra Prasad Jaisval V/s state of M. P. (2002 (1) W. N. 181) and Ram Prasad V/s State of M. P. (1983 (2)Grimes 145) and other High Courts in the cases of Balraj S. Kapoor V/s State of bombay (AIR 1954 Bombay 360) and Moolaram V/s State of Rajasthan, (1982 (2) Cri. L. J. 2333), In all these judgments of this High Court as well as rajasthan and Bombay High Courts, it is held that Criminal Court has power to remit any portion of the penalty as per provision under section 446 (3) of the Code till final realization of penalty amount. It is specifically held that forfeiture of bond andwrder for payment of penalty and non-payment of penalty amount and in pendency of recovery proceedings, the Court has power to remit any portion of the penalty as per provision under section 446 (3) of the Code till final realization of the penalty amount. ( 7. ) CONSIDERING the aforesaid judgments, this High Court passed a detailed judgment in the case of Shambhulal V/s State of M. P. (2005 Cri JL. R. (M. P.)351 ). and specifically held and clarified that exercise of power under section 446 (3) of the Code for remitting the penalty amount by criminal Court, would not amount review of its own order and Subordinate Courts have power to remit any portion of penalty imposed and enforce payment in part only. ( 8. ) LEARNED counsel for the Non-applicant (State) has brought to the notice of this Court the judgment rendered by the learned Single Judge of Kerala High court in the case of Jamila Khade and others V/s State of Kerala, (2004 Cri. ( 8. ) LEARNED counsel for the Non-applicant (State) has brought to the notice of this Court the judgment rendered by the learned Single Judge of Kerala High court in the case of Jamila Khade and others V/s State of Kerala, (2004 Cri. L. J. 3389), wherein it is held in paras 20 and 21 that the criminal Court has no power to remit a portion of the penalty as per provision under section 446 (3) of the Code and this provision can be considered by the Court at the time of passing the order under section 446 (1) and (2) of the Code. Learned Single Judge has also assigned reasons for this view that a criminal Court does not have power to review or alter its own. order. This Court with respect, does not agree with this preposition. It is true that in the Code of Criminal Procedure, there is no specific power regarding review or alter its own order by the criminal Court But when specific provision is prescribed in the Code of Criminal Procedure for review or alter a particular order by the criminal Court, then this general provision will not apply. In this regard provision under section 362 of the Code is relevant which reads thus;- 362 Court not to alter Judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, the Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to xorrect a clerical or arithmetical error. " ( 9. ) THIS provision of section 362 of the Code would not apply because it starts with a saving clause, therefore, passing of order under section 446 (3) of the code to remit any portion of the penalty is not covered by the provision of section 362 imposing restriction to alter or review the judgment or final order disposing of a case and the provision to bail and bonds in Chapter XXXIII under the Scheme of Criminal Procedure. . 1973, are independent and provide separate and independent provisions to bail and bonds. It is also significant to mention here that by passing order under Sub Section 1, 2 or under Section 3 of Section 446 of the code the case is not disposed of. ( 10. . 1973, are independent and provide separate and independent provisions to bail and bonds. It is also significant to mention here that by passing order under Sub Section 1, 2 or under Section 3 of Section 446 of the code the case is not disposed of. ( 10. ) IN view of the above, this Court has discretionary power, after recording reasons as per provision under section 446 (3) of the Code to remit any portion of penalty imposed by order in para 12 of the impugned judgment. This Court" is conscious about use of discretionary powers judiciously. ( 11. ) LEARNED counsel for the applicant has submitted that the petitioner is an old man aged 60 years having small agricultural land and earning livelihood by cultivation and also by working as labourer. He comes from tribal (Bheel)community residing in interior village of Jhabua District. He received show cause notice on 09. 02. 08 for his appearance and to show cause on 11. 02. 08. Within such a short span of time, he could not arrange finance and prepare himself to come for filing reply and in the meanwhile impugned judgment and order has been passed by this High Court on 13. 02. 08. It is also submitted that the applicant/surety got the appellant arrested by giving information to the police. ( 12. ) HAVING heard learned counsel for the parties and looking to the fact that the appellant was arrested and lodged into jail, thereafter impugned final judgment was passed on 13. 02. 08 acquitting the appellant Sumaliya, ends of justice would be sub served to direct the applicant/surety to deposit as penalty bond amount of rs. 5,000/-out of bond amount of Rs. 30,000/ -. ( 13. ) IN the result, this petition is allowed in part and the order in para 12 passed by the impugned judgment dated 13. 02. 08 in Cri. Appeal No. 120/05 is modified up to the extent indicated herein-above. . The applicant is directed to deposit Rs. 5,000/- (Five thousand rupees) on or before 30. 03. 09 failing which the learned chief Judicial Magistrate, Jhabua is directed to take appropriate legal steps for recovery of amount of Rs. 5,000/-Petition partly allowed.