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Himachal Pradesh High Court · body

2018 DIGILAW 1994 (HP)

Netar Singh v. State Of Himachal Pradesh

2018-11-16

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of orders dated 29.8.2017, 9.4.2018 and 18.9.2018, passed by learned Special Judge(II) Kullu, H.P., whereby bail bonds of the accused have been cancelled and forfeited to the State of H.P., and proceedings under Section 446 Cr.P.C have been initiated against the present petitioner, who stood surety to the accused. 2. Facts, as emerge from the record are that in the Session Trial No. 27 of 2016, titled as State of Himachal Pradesh versus Bhupinder Kumar, which is pending adjudication before the learned Special JudgeII, Kullu, District Kullu, H.P., present petitioner stood surety of accused namely, Bhupinder Kumar and furnished surety bond in the sum of Rs. 1,00,000/-. Since, accused failed to appear before the Court below, it cancelled the bail bonds of the accused and forfeited to the State of H.P. and initiated proceedings under Section 446 Cr. P.C., against the present petitioner vide order dated 29.8.2017 (Annexure P1). On 19.9.2017, petitioner sought time to file reply,whereafter he made all out efforts to trace and find out the accused, so that he could be presented before the trial Court, but he was unable to find out the accused. On 9.4.2018. learned Special Judge(II) Kullu forfeited the surety amount to the State of Himachal Pradesh and issued realization warrant against the petitioner for 26.5.2018 ( Annexure P2). On 18.9.2018 learned court below adjourned the matter for 26.10.2018 for payment of forfeited amount i.e. Rs. 1,00,000/-. In the aforesaid background, present petitioner has approached this Court in the instant proceedings, praying therein to quash and setaside the aforesaid orders passed by the learned court below. 3. Mr. Balwant Singh Thakur, learned counsel representing the petitioner, contended that bare perusal of zimni orders placed on record, clearly suggests that petitioner was condemned unheard because no opportunity of being heard was ever afforded to the petitioner by the Court below before forfeiting the surety amount. He further contended that petitioner belongs to poor family and he is hardly meeting daily expenses of the family and it is beyond his limit to deposit Rs. 1,00,000/- in terms of the realization warrant issued by the Court below vide order dated 9.4.2018. He further contended that petitioner belongs to poor family and he is hardly meeting daily expenses of the family and it is beyond his limit to deposit Rs. 1,00,000/- in terms of the realization warrant issued by the Court below vide order dated 9.4.2018. He further contended that petitioner has a family to support and he requires sufficient money to look after his old age parents and school going children. While referring Section 446(3) Cr.P.C, Mr. Thakur, contended that Court has power "to remit any portion of the penalty" and as such, in the peculiar facts and circumstances of the case, prayer made in the application may be accepted. 4. Having heard learned counsel for the parties and perused the material available on record, it is not in dispute that present petitioner stood surety of the accused in Sessions Trial No.26 of 2016, titled as State of H.P. Versus Bhupinder Kumar, which is still pending adjudication before the learned Special Judge(II), Kullu, H.P. It is also not in dispute that accused Bhupinder Kumar is absconding and inspite of best efforts put in by the prosecution as well as petitioner, his whereabouts are not known. Since, accused failed to put in appearance as per surety furnished by him, learned Court below rightly issued notice under Section 446 Cr.P.C to the present petitioner, being his surety. But question which needs to be decided in the present petition whether amount of surety can be remitted or reduced by this Court while exercising power under Section 482 Cr.P.C or not?. Question whether the petitioner had received any summon/ information from the Court before initiation of proceedings under Section 446 Cr.P.C, has no relevance, especially when impugned orders, as have been taken note above, were passed in the presence of the present petitioner, rather careful perusal of order dated 18.9.2018, clearly suggests that learned counsel appearing on behalf of the petitioner had sought time for making payment in terms of realization warrant issued on 6th July, 2018. 5. It would be profitable to reproduce Clause(3) of Section 446 Cr.P.C as under: " The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only." 6. 5. It would be profitable to reproduce Clause(3) of Section 446 Cr.P.C as under: " The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only." 6. There is no dispute that sub section (3) of Section 446 Cr.P.C, which is reproduced hereinabove, empowers the Court to exercise its discretion to remit any portion of the penalty and enforce payment of only part of the penalty. 7. Question with regard to competence of Court to remit penalty under Section 446 Cr.P.C, came to be adjudicated by the Hon''ble High Court of Kerala in case titled as Jameela Khader and others versus State of Kerala , (2004) CriLJ 3389, wherein it has been held as under: "7. As mentioned earlier, the petitioners were directed to show cause why penalty should not be imposed on them for their failure to produce the accused before the Court on the date fixed for hearing. SubSection (2) of Section 446 provides that if the sureties do not show sufficient cause and they do not pay the penalty imposed on them, the Court may proceed to recover the same as though it is a fine imposed by the Court under the Code. If recovery becomes impossible, the sureties are liable to suffer imprisonment in civil jail for a term which may extend to six months. 8. There is no dispute that subSection (3) of Section 446 empowers the Court to use its discretion to remit any portion of the penalty and enforce payment of only part of the penalty. Clause 3 of Section 446 reads as hereunder: "3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in party only." It is true that the above provision does not specify at what state the Court can remit the penalty. But the preceding clause make it clear that the Court can impose penalty only after recording proof of forfeiture and after issuing show cause notice. 9. The short question are: (1) Can the Court which forfeits the bond of the surety remit or order part payment of the penalty after imposing such penalty? (2) Can the Criminal Court reopen or review its earlier order of imposition of penalty to invoke the power of discretion as provided under SubSection (3) of Section 446?." 10. 9. The short question are: (1) Can the Court which forfeits the bond of the surety remit or order part payment of the penalty after imposing such penalty? (2) Can the Criminal Court reopen or review its earlier order of imposition of penalty to invoke the power of discretion as provided under SubSection (3) of Section 446?." 10. On a perusal of the provisions in Section 446, it is evident that a bond which has been executed either for appearance of accused or production of property shall be forfeited the moment it is proved that a condition in the bond has been violated. For instance, if the accused fails to appear on the day on which he has been directed to appear, the Magistrate is empowered to forfeit the bond of the accused as well as that of the sureties forthwith. Of course, the Court must be satisfied that the condition in the bond has been violated. Thus it can be seen that the power vested with the Court to forfeit the bond is unfettered. However, clause (1) of Section 446 provides that the Court shall record the grounds of proof of forfeiture. Thereafter the Court may call upon any person bound by such bond to pay the penalty or to show cause why it should not be paid. Thus clause (1) of Section 446 clearly indicates that the forfeiture of a bond for breach of any of the conditions is almost an inevitable or automatic consequence. It is then for the surety to explain the reasons for the breach. Clause (2) of Section 446 stipulates that if sufficient cause is not shown and the penalty is not paid the Court may proceed to recover it. The proviso to clause (2) deals with the consequences of failure to pay the penalty. The person who is bound as surety is liable to suffer imprisonment in civil jail if he fails to pay the penalty imposed. 11. A reading of the above two clauses of Section 446 clearly shows that forfeiture of the bond and payment of penalty would follow as a natural consequence for breach of any of the conditions of the bond. The quantum of penalty may be the entire amount covered under the bond or it may be as decided by the Court after hearing the surety. The quantum of penalty may be the entire amount covered under the bond or it may be as decided by the Court after hearing the surety. It is provided in clause (1) that "the Court may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid" Nevertheless, the Court can exonerate the surety from payment of penalty, if it is satisfied that there are valid reasons for the failure to produce the accused or the property. The Court can exercise its discretion in the matter after hearing the surety. The court can remit any portion of the penalty and direct the surety to pay only a portion thereof." 12. But incidentally, it may be noticed that by the subsequent introduction of Section 446-A in the Code, the situation is slightly different. If the bond is executed for appearance of an accused and the bond is cancelled due to his failure to appear, then the court can forfeit the bond. His release can be ordered "upon the execution of a fresh personal bond............with one or more of such sureties". No penalty is envisaged under Section 446-A. More importantly the provisions contained in Section 446-A are "without prejudice to the provisions of Section 446". 13. However, the question that has arisen in this case is at what stage the court can use its discretion to remit a portion of the penalty if the bond is cancelled under Section 446. Evidently the court which forfeits the bond has to necessarily consider all facts and circumstances before imposing the penalty. There may be situations where the accused might have been prevented from appearance in Court due to valid reasons beyond his control. Instances may be numerous and variegated depending on factual situations which cannot be enumerated. But the crucial issue is to find out whether the accused had failed to appear before the Court for genuine and justifiable reasons and also whether the sureties were at fault in failing to procure the attendance of the accused. All the attendant circumstances have to be considered by the Court while imposing the penalty consequent on the forfeiture. Question of remission of penalty or enforcement of payment only in part is also to be considered at that stage. All the attendant circumstances have to be considered by the Court while imposing the penalty consequent on the forfeiture. Question of remission of penalty or enforcement of payment only in part is also to be considered at that stage. In my view, the discretion has to be exercised at the time when the penalty is imposed and not at any later stage. In that view of the matter, the order impugned cannot be faulted. 14. But learned counsel for the petitioners submits that the Court can exercise the power of discretion at any stage. He places reliance on a few reported decisions in support of his contention. 15. In Balraj S. Kapoor v. State of Bombay , (1954) AIR Bombay 365, it was held that the Court can remit a portion of the penalty invoking its discretionary power under Section 514(5) of 1898 Code (Section 446(3) of the 1973 Code) even at a subsequent stage. 16. In Sualal Mushilal v. State , (1957) AIR M.P. 231, it was held that the power to remit a portion of the penalty in exercise of its power under Clause (5) of Section 514 of the 1898 Code (corresponding to Section 446(3) of 1973 Code) could be exercised so long as the payment of any portion of the penalty remains unenforced. Though the circumstances which justify remission of a portion of the penalty have to be considered by the Court before it proceeds to consider the answer of the surety to the show cause notice, still the Court could remit any portion of the penalty if such circumstances occur subsequent to the order of recovery so long as the amount was not totally recovered. 17. In Moola Ram v. State of Rajasthan , (1982) CriLJ 2333, the High Court of Rajasthan held as follows: "Even after passing the final order forfeiting the bond for appearance in Court and for recovery of the whole amount of penalty under the bond, the Court under Section 446(3) can remit any portion of the penalty so long as the amount is not totally recovered. There is nothing in Section 446(3) to show that an order remitting any portion of the penalty and enforcing payment of part thereof can be passed by the Court only at the time it passed the final order directing forfeiture of the bond and realisation of the amount thereof as penalty." In the above decision the learned Single Judge had followed Balraj Kapoor''s case and Sualal Mushilal''s case mentioned supra. 18. Sri. Mohammed Anzar, learned counsel for the petitioners submits that judicial precedents mentioned above are unanimous in the view that the court which imposes the penalty after forfeiture of the bond can remit the penalty or direct that only a portion thereof be paid. This can be done even at a subsequent stage. But I find it difficult to agree with the above proposition. 19. In Balraj Kapoor''s case (supra), the learned Judge of the Bombay High Court had observed that: "........ it seems to me that the better View is that the Court is called upon to require the surety to pay the amount of the penalty or to remit a portion of the penalty as soon as the bond is forfeited. It is at that stage that the Court is called upon to consider the question as to whether the entire amount of the penalty should be ordered to be paid or only a portion of the amount should be ordered to be paid....... The question whether the discretion is to be exercised at a subsequent stage or at the stage when the Court calls upon the surety to pay the amount of the penalty is, I think, not free from difficulty. It is, I think, possible to take the view that the Court may, in its discretion, remit a portion of the penalty and enforce payment in part only even at a subsequent stage. But I would prefer to say that the Court can insist upon the payment of the entire amount of the penalty or may make an order remitting a portion of the penalty as soon as the bond is forfeited and the Court is called upon to apply its mind to the matter........" 20. I am inclined to agree with the above observation in the judgment, though it was ultimately held by the learned Judge that the Court can remit the penalty even at a subsequent stage. 21. I am inclined to agree with the above observation in the judgment, though it was ultimately held by the learned Judge that the Court can remit the penalty even at a subsequent stage. 21. There is yet another reason to take the above view. A criminal Court does not have the power to review or reopen its own order. In this case the order that was passed imposing a penalty of Rs. 5,000/- each had become final. Therefore, the Court could not have reopened or reviewed its own earlier order as requested by the petitioners. 22. However, the discretion vested in the Court by virtue of Clause (3) of Section 446 can be exercised by the appellate or revisional court if the order is challenged as provided under the Code. The appellate or revisional Court, as the case may be, can always consider, even at a later stage, whether there are circumstances warranting remission of penalty. 23. It is contended by the learned Public Prosecutor that in the case on hand, the petitioners had a remedy to challenge the impugned order before the Sessions Court by filing an appeal. It is contended that this petition under Section 482 of the Code cannot be entertained since the petitioners had not resorted to the remedy available to them. It is true that an appeal is provided under Section 449 of the Code which enables the aggrieved party to file an appeal against "all orders passed under Section 446". If the impugned order is passed by a Magistrate, an appeal shall lie to the Sessions Court. In the case of an order made by a Court of Sessions, an appeal lies before the High Court. Therefore there is force in the contention of the learned Public Prosecutor that the petitioners are not without any remedy as provided under the Code. 24. But in the peculiar facts and circumstances of this case, I am not inclined to direct the petitioners to approach the Appellate Court. This Court can always consider the question whether an order passed by the inferior court is just or legal. If there is any illegality or irregularity, this Court can always interfere in order to meet the ends of justice. 8. This Court can always consider the question whether an order passed by the inferior court is just or legal. If there is any illegality or irregularity, this Court can always interfere in order to meet the ends of justice. 8. Consequently, in view of the aforesaid position of law as well as view taken by the Courts, referred hereinabove, the discretion vests in the Court by virtue of clause (3) of Section 446 Cr.P.C to remit the amount of penalty. In the present case, learned counsel for the petitioner submits that the petitioner is a poor person and is not in a position to make payment of the penalty of Rs. One lakh. So, keeping in view the submission made by learned counsel for the petitioner, this Court is of the view that the petitioner deserves concession of reduction of penalty. Therefore, the orders dated 29.8.2017, 9.4.2018 and 18.9.2018, passed by the learned court below are modified to the extent that the petitioner shall pay a penalty of Rs.10,000/-, which shall be deposited before the trial Court within a period of two months from the date receipt of certified copy of this order. The petition is disposed of in the aforesaid terms.