Allowed

Sangat Ram v. State of Hp

Himachal Pradesh HC16 Dec 2022CR.A/428/2022

Case brief

AI extract

What is this about?

Appeal against penalty and recovery warrant imposed on a surety for absconding accused under S. 446 CrPC. Court exercised discretion to remit majority of penalty, reducing liability to Rs. 10,000 due to appellant's BPL status, and modified the lower court order accordingly.

What did the court decide?

Warrant of recovery quashed; penalty remitted to Rs. 10,000 payable within two months; original order revived if payment not made.

Sangat Ram Vs State of Hp — Criminal Trial and Appeal | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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	Cr. Appea Decided on: D	l No. 428 of 2022 ecember 16, 2022
__________________________ Sangat Ram State of Himachal Pradesh	________________ Versus	______________ ………..Appellant ….Respondent
__________________________ Coram: Hon’ble Mr. Justice Sandeep S Whether approved for reporting? __________________________	________________ harma, Judge. ¹no.. ________________	______________ ______________
For the appellant :	Mr. R.K. Sharma, with Mr. Arun Kuma	Senior Advocate r, Advocate.
For the Respondents : __________________________	Mr. Sumesh Raj Thakur, Additio General. ________________	and Mr. Dinesh nal Advocates ______________

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Sandeep Sharma, Judge (oral):

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By way of instant appeal filed under S.449 CrPC, challenge has been laid by the appellant to the order dated 6.9.2022 passed by learned Special Judge, Mandi, Himachal Pradesh, whereby penalty of Rs.1.00 Lakh has been imposed upon the appellant and warrant of recovery has been ordered to be issued against the appellant, returnable for 18.10.2022.

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Precisely, the facts of the case, as emerge from the record, are that appellant stood surety for one Nitesh Kumar son of Narender Kumar, resident of Village and Post Office Meramasti, Tehsil Sundernagar, District Mandi, Himachal Pradesh in a case under S.376 IPC. Since the main accused Nitesh Kumar after furnishing of bonds, failed to appear before learned trial Court on 3.8.2022, proceedings

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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under S.446 CrPC were initiated against the present appellant and ultimately vide impugned order, penalty of Rs.1.00 Lakh has been imposed upon the appellant and a warrant of recovery has been issued returnable for 18.10.2022.

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Being aggrieved and dissatisfied with the passing of the aforesaid order, appellant, has approached this court, praying therein to set aside aforesaid order of recovery issued by learned court below.

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Since the appellant being surety of main accused Nitesh Kumar, failed to cause his presence before learned court below despite notice, it had no option but to initiate proceedings against the appellant under S. 446 CrPC, but the question which remains to be decided in the present petition is that, “Whether the amount of penalty can be reduced under S.446 CrPC, or not?

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It is not in dispute that the amount of surety is being sought to be realized by learned court below by issuing warrant of recovery issued through District Collector. Before considering the prayer made in the present appeal, it would be apt to take note of S.446(3) CrPC, which reads as under:

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“The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.”

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It is quite apparent from aforesaid provision of law that court has power to exercise its discretion to remit any portion of penalty mentioned and enforce payment in part only.

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Question with regard to competence of Court to remit

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penalty under Section 446 Cr.P.C, came to be adjudicated by

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the Hon’ble High Court of Kerala in case titled as Jameela Khader and others versus State of Kerala , 2004 CRI. L.J. 3389, wherein it

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has been held as under:-

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“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. Sub¬Section (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.

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There is no dispute that sub-Section (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:¬

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“3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in party only.

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”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.

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9. The short question are:-

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(1) Can the Court which forfeits the bond of the surety remit or order part payment of the penalty after imposing such penalty?

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(2) Can the Criminal Court reopen or review its earlier order of imposition of penalty to invoke the power of discretion as provided under Sub-Section (3) of Section 446?.”

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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.

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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. 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” (emphasis supplied). 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

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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.”

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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".

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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. 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.

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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.

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In Balraj S. Kapoor v. State of Bombay , AIR 1954 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.

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In Sualal Mushilal v. State , AIR 1954 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.

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In Moola Ram v . State of Rajasthan , 1982 Crl.L.J. 2333, the High Court of Rajasthan held as follows:

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"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."

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In the above decision the learned Single Judge had followed Balraj Kapoor's case and Sualal Mushilal's case mentioned supra.

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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.

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In Balraj Kapoor's case (supra), the learned Judge of the Bombay High Court had observed that:

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"........ 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.......

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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........"

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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.

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There is yet another reason to take the above view. A criminal Court does not have the power to review or re-open 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.

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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.

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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.

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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

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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.”

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Careful perusal of aforesaid law reveals that the discretion vests in the court by virtue of sub-section (3) of S.446 of CrPC, to remit any amount of penalty. In the present case, record clearly reveals that the appellant stood surety for the accused Nitesh Kumar and executed surety bonds in the sum of Rs. 1.00 Lakh. Though after issuance of notice in the proceedings under S.446 CrPC, appellant made sincere efforts to locate whereabouts of the accused Nitesh, but he failed. It is not in dispute that now main accused Nitesh Kumar has been arrested.

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At this stage, learned counsel for the appellant states that the appellant belongs to BPL family and also is a member of Scheduled Caste community, as such, is unable to pay the amount of penalty, as such, it would be too harsh for the appellant, if the warrant of recovery of Rs. 1.00 Lakh, is effected in its entirety and the entire family of the appellant would be left to starve.

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Having carefully scanned entire record, this court is of the view that appellant deserves concession of reduction in penalty. Accordingly, the present appeal is allowed and order dated 6.9.2022 passed by learned Special Judge, Mandi, Himachal Pradesh in case State v. Sangat Ram is modified to the extent that the appellant shall pay sum of Rs. 10,000/- within a period of two months from the date of receipt of a certified copy of this order. Resultantly, the order dated 6.9.2022, to the extent warrant of recovery has been issued, is

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quashed and set aside. However, if the appellant fails to deposit the amount as quantified above, within the stipulated period, the order dated 6.9.2022 shall automatically revive and warrant of recovery shall be effected by the District Collector.

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The appeal stands disposed of accordingly, alongwith all

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pending applications.

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(Sandeep Sharma) Judge

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December 16, 2022 (vikrant)

Sangat Ram v. State of Hp

Case brief

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Sangat Ram v. State of Hp

Case brief

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