Punjab-Haryana High Court
Bhim Singh vs Hy.State on 12 July, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
Neutral Citation No:=2024:PHHC:085811-DB
CRA-S-309-SB of 2002 - 1-
103/2
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-309-SB of 2002
Date of Decision: 12.07.2024
Bhim Singh ...Appellant
Vs.
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present: Mr. Ashish Gupta, Advocate, for the appellants.
Ms. Sheenu Sura, DAG, Haryana.
***
N.S.SHEKHAWAT, J.
1. The present appeal has been preferred against the impugned order dated 23.04.2001 (Annexure P-2) passed by the Court of Sessions Judge, Sonipat, whereby, a penalty of Rs. 1,00,000/- has been imposed on the appellant under Section 446 of the Code of Criminal Procedure 1973 for not producing the accused Raj Singh before the trial Court.
2. Learned counsel for the appellant argued that Raj Singh son of Om Parkash resident of village Saidpur, District Sonipat was facing trial in case FIR No. 73 dated 04.04.2000 under Sections 302, 307, 326/34 IPC and Section 25 of the Arms Act, Police Station Kharkhoda. His real brother Suresh had expired on 28.03.2001 and he 1 of 5 ::: Downloaded on - 24-07-2024 08:00:34 ::: Neutral Citation No:=2024:PHHC:085811-DB CRA-S-309-SB of 2002 - 2- had applied for interim bail. Raj Singh was allowed interim bail and was directed to surrender before the Court on 04.04.2001. However, on 04.04.2001, Raj Singh did not appear before the trial Court as per the directions of the Court. Later on, Bhim Singh, appellant was directed to produce Raj Singh before the trial Court and since he failed to produce Raj Singh before the Court, vide order dated 23.04.2001, a penalty of Rs. 1,00,000/- was imposed on him for not producing Raj Singh before the trial Court. Learned counsel for the appellant argued that the appellant was an agriculturist and had no other source of income except the agricultural land. He further contended that even an excessive amount of Rs. 1,00,000/- had been imposed on the appellant and he was unable to pay the same. Learned counsel further contended that after some time, Raj Singh was arrested and the appellant had made sincere efforts for securing the presence of Raj Singh before the trial Court. Moreover, vide judgment and order 02.06.2003 and 05.11.2003, respectively, the Court of Additional Sessions Judge, Sonipat had convicted Raj Singh and his co-accused for the commission of offences under Sections 302, 307/34 IPC and Section 25 of the Arms Act and they were sentenced to undergo imprisonment for life.
3. On the other hand, learned State Counsel has vehemently opposed the prayer made by learned counsel for the appellant and prayed for dismissal of the appeal.
4. I have heard learned counsel for the parties and perused 2 of 5 ::: Downloaded on - 24-07-2024 08:00:34 ::: Neutral Citation No:=2024:PHHC:085811-DB CRA-S-309-SB of 2002 - 3- the impugned judgment and all other documents of the file.
5. There is no dispute that sub section (3) of Section 446 Cr.P.C. empowers the Court to exercise its discretion to remit any portion of the penalty and enforce payment of only part of the penalty. Clause (3) of Section 446 Cr.P.C. is reproduced as under:-
"(3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only."
6. Now the question for consideration by this Court is whether the Court has discretion to remit a portion of the penalty imposed under Section 446 CrPC and the Court has power/discretion at any stage. It was held in case titled Balraj S. Kapoor v. State of Bombay cited as AIR 1954 Bombay 365 that Court can remit a portion of the penalty by invoking its discretionary power under Section 514(5) of 1898 Code (Section 446(3) of the 1973 Code) even at a subsequent stage. In Sualal Mushilal v. State, AIR 1957 Madhya Pradesh 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. In Moola Ram v. State of Rajasthan 1982 Crl.L.J.2333, the High Court of Rajasthan observed as under:
"Even after passing the final order forfeiting the bond for appearance in Court and for recovery of the whole 3 of 5 ::: Downloaded on - 24-07-2024 08:00:34 ::: Neutral Citation No:=2024:PHHC:085811-DB CRA-S-309-SB of 2002 - 4- 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 realization of the amount thereof as penalty."
7. Keeping in view the position of law as well as the views taken by the Courts, the discretion vests in the Court by virtue of clause (3) of Section 446 Cr.P.C. and the same 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 consider even at a later stage, if the circumstances of remission of penalty are there, based on facts of a particular case.
8. In the present case also, learned counsel for the appellant has submitted that the appellant is a poor person and is an agriculturist. He is not in a position to pay the penalty of Rs. 1,00,000/-. Consequently, taking a lenient view of the matter, the appellant deserves the reduction of penalty and the impugned order dated 23.04.2001 (Annexure P-2) passed by Sessions Judge, Sonipat is modified to the extent that the appellant shall pay a penalty of Rs.35,000/-.
10. In view of the above, the present appeal stands disposed 4 of 5 ::: Downloaded on - 24-07-2024 08:00:34 ::: Neutral Citation No:=2024:PHHC:085811-DB CRA-S-309-SB of 2002 - 5- of in the above terms.
11. Pending application, if any, shall also stand disposed off.
(GURVINDER SINGH GILL) JUDGE (N.S.SHEKHAWAT) 12.07.2024 JUDGE amit rana Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 5 of 5 ::: Downloaded on - 24-07-2024 08:00:34 :::