Himachal Pradesh High Court
Between vs State Of Himachal Pradesh on 14 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CR. APPEAL NOS. 230, 231 AND 240 OF 2022
.
1. CR. APPEAL NO. 230 OF 2022
Between:-
BALAK RAM ALIAS BALKU,
S/O SH. SHUKRU
AGE 64 YEARS
RESIDENT OF VILLAGE AND P.O. MOHAL,
TEHSIL AND DISTRICT KULLU, H.P.
APPELLANT
(BY MR. SANJAY BHARDWAJ, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
r RESPONDENT
(BY MR. SUDHIR BHATNAGAR AND
MR. NARINDER GULERIA, A
DDITIONAL ADVOCATES GENERAL WITH
MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL &
MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
2. CR. APPEAL NO. 231 OF 2022
Between:-
RAJU
S/O SH. PREM CHAND
AGE 43 YEARS
RESIDENT OF VILLAGE SHURAD, P.O. KHOKHAN,
TEHSIL BHUNTAR, DISTRICT KULLU, H.P.
APPELLANT
(BY MR. SANJAY BHARDWAJ, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
RESPONDENT
(BY MR. SUDHIR BHATNAGAR AND
MR. NARINDER GULERIA, A
::: Downloaded on - 15/09/2022 20:02:32 :::CIS
2
DDITIONAL ADVOCATES GENERAL WITH
MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL &
MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
3. CR. APPEAL NO. 240 OF 2022
.
Between:-
PREM CHAND
S/O LATE SH. DEVU
AGED 75 YEARS,
RESIDENT OF VILLAGE AND P.O. BANDROL,
TEHSIL AND DISTRICT KULLU, H.P.
APPELLANT
(BY MR. SANJAY BHARDWAJ, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
RESPONDENT
(BY MR. SUDHIR BHATNAGAR AND
MR. NARINDER GULERIA, A
DDITIONAL ADVOCATES GENERAL WITH
MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL &
MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
Whether approved for reporting:
These appeals coming on for orders this day, the court delivered
the following:
J U D G M E N T
Since all these appeals arise out of connected proceedings before learned Court below, as such, same were heard together at the request of Learned Counsel appearing for the appellant and are being disposed of vide this common judgment.
2. By way of instant criminal appeals filed under S.449 (ii) CrPC, challenge has been laid to orders dated 28.5.2022 passed by learned ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 3 Special Judge-II, Kullu in CrMP's Nos. 327 of 2022, State v. Prem Chand, 328 of 2022, State v. Balak Ram and 329 of 2022 titled State v. Raju, wherein learned Court below ordered forfeiture of the surety bonds furnished by the appellants and imposed penalty of Rs. 5.00 Lakh each, .
upon all the appellants, in the proceedings under S.446 CrPC in Session Trial No. 39 of 2018, titled State v. Prakash Suvedi.
3. Precisely, the facts of the case, as emerge from the record, are that in Session Trial No. 39 of 2018 titled state v. Prakash Suvedi, which is pending before learned Special Judge, Kullu, present appellants stood surety for the accused namely Prakash Suvedi and furnished surety bonds of Rs. 5.00 Lakh each. Since the accused failed to appear before learned court below, it cancelled the bail bonds of accused and forfeited the same to the State of Himachal Pradesh and initiated proceedings under S. 446 CrPC were initiated against appellants in terms of order dated 31.3.2022.
4. Since the appellants surety despite having been afforded opportunity to cause presence of the accused before learned Court below, failed to procure the presence of the accused and as such, learned Special Judge-II Kullu vide order dated 28.5.2022, imposed penalty of Rs.5.00 Lakh each upon all the three sureties, who are appellants herein.
Vide aforesaid order, learned Special Judge also issued direction for issuance of warrant to realize the amount of penalty through Collector, Kullu. In the aforesaid background, appellants have approached this court in the instant proceedings, praying therein to set aside the impugned order or reduce the amount of penalty imposed by learned court below while exercising power under S.446(iii) CrPC.
::: Downloaded on - 15/09/2022 20:02:32 :::CIS 45. Learned counsel for the appellants contended that though the appellants had given surety in favour of accused, while he was being enlarged on bail in the case registered against him under the Narcotic Drugs and Psychotropic Substances Act, but since despite best efforts put .
in by them, whereabouts of the accused could not be ascertained, appellants-sureties cannot be saddled with such huge liability of Rs.5.00 Lakh each. He further submitted that since three persons stood as surety against accused, learned court below ought not have imposed penalty of Rs.5.00 Lakh against all, especially when contraband allegedly recovered from the conscious possession of accused was only 1.600 kg. Learned counsel for the appellants further submitted that the appellants belong to poor families and it is beyond their limit to deposit Rs.5.00 Lakh each, in terms of order dated 28.5.2022 issued by learned court below. He submits that the appellants have their families to support and in case they are compelled to pay the amount of penalty, they may have to sell their lands/properties, as a consequence of which their families would be on the road. While inviting attention of this court to S.446(3) , Learned Counsel appearing for the appellants contended that this court can always remit any portion of the penalty.
6. Mr. Narinder Guleria, learned Additional Advocate General, while opposing aforesaid prayer made on behalf of the appellant(s) contended that since the appellants failed to cause presence of the accused as undertaken by them, while furnishing surety bonds, no illegality can be said to have been committed by learned court below while imposing penalty of Rs. 5.00 Lakh.
::: Downloaded on - 15/09/2022 20:02:32 :::CIS 57. Having heard learned counsel for the parties and perused material available on record, this court though finds no illegality in the impugned orders dated 28.5.2022, because in the event of non-appearance of the accused in trial, it is the duty of the appellants to cause his presence. In .
case surety of the accused fails to cause his presence, surety amount mentioned in the surety bonds is liable to be recovered from them. Since in the case at hand, appellants furnished surety in the sum of Rs. 5.00 Lakh at the time of enlargement of accused on bail, and they failed to cause his presence during trial, learned court below had no option but to initiate proceedings under S. 446 CrPC against the sureties /appellants.
Once the surety fails to render proper explanation on record qua non-
appearance of accused or he/she fails to ensure appearance of the accused during trial, court is well within its jurisdiction to impose penalty in proceedings under S.446 CrPC.
8. Question, which now remains to be considered is, 'whether this court can reduce the amount of penalty imposed by learned court below or not?
9. Before finding answer to the same, S. 446(iii) CrPC, may be taken note of, which reads as under:
"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 of 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 ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 6 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. 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. 1 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, at its discretion, 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. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and,; if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved."
10. S. 446 CrPC, clearly empowers a court to, at its discretion, remit any portion of penalty in peculiar facts and circumstances of the case.
11. In the case at hand, record reveals that all the appellants stood sureties in the sum of Rs.5.00 Lakh each, for the same accused, while he was enlarged on bail. Interestingly, learned court below has directed all ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 7 the appellants to deposit sums of Rs.5.00 Lakh each, on account of penalty. Penalty imposed by learned court below appears to be on higher side, especially when it emerges from the record that the appellants made all out efforts to cause presence of the accused but since the .
whereabouts of the accused were not known to them, it may be too harsh to burden the appellants with penalty of Rs.5.00 Lakh each.
12. Careful perusal of S.446 (i) CrPC reveals that it is in two part, first part deals with the forfeiture of bond and second party with payment of penalty. After having forfeited bonds furnished by an accused or a surety, court can either impose penalty of entire surety amount or it may be decided by the court after hearing the surety. In the case at hand, it has been averred on behalf of the appellants/sureties, that he is not in a position to pay entire amount of surety bond i.e. Rs. 5.00 Lakh and in the event of his being compelled to do so, he may have to sell his property as a consequence of which the entire family of surety would be ruined.
13. Otherwise also, while passing order with regard to imposition of penalty, for not causing appearance of the accused, crucial issue is to find out whether the accused had failed to appear for genuine and justifiable reason and also whether the sureties were at fault in not securing attendance of the accused. All the attending circumstances are to be taken into consideration by court, while imposing the penalty consequent upon forfeiture.
14. Since in the case at hand, appellants made sincere efforts to cause presence of the accused in the trial, and on account of order of imposition of penalty by learned court below, serious prejudice may be caused to ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 8 accused and their families, learned court below while imposing penalty, ought to have been little considerate/lenient. Reliance is placed upon judgment passed by Kerala High Court in Jameela Khader v. State of Kerala, 2004 Crl. L.J. 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. Su-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.
8. 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:¬ "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 Sub-Section (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 ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 9 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. 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 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 ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 10 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.
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, 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.
16. 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.
17. In Moola Ram v. State of Rajasthan, 1982 Crl.L.J. 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 ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 11 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. 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.
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 ::: Downloaded on - 15/09/2022 20:02:32 :::CIS 12 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.
15. Co-ordinate Bench of this court in similar facts and circumstances also remitted portion of penalty imposed by learned court below in Cr.
Appeal No. 221 of 2021 titled Ram Singh v. State of Himachal Pradesh, decided on 18.11.2021, observing as under:
16. Prima facie, this Court does not find any infirmity with the order passed by learned Court below as admittedly when the appellants stood surety for the accused and thereafter accused did not appear in the Court of law to face the trial, but natural, the appellants have to face the consequences. However, during the course of arguments this fact has gone un-rebutted that the appellants are poor persons and the amount of penalty imposed upon the appellants is huge.
17. Consequently in view of detailed discussion made herein above and the law taken into consideration, this court, is of the view that the discretion vests in this court, under S.446 (iii) CrPC, to remit the penalty.
Since in the instant cases, appellants/sureties are not the men of sufficient means, quantum of penalty imposed by learned court below while forfeiting sureties exercising power under S.446 CrPC, deserves to be modified.
::: Downloaded on - 15/09/2022 20:02:32 :::CIS 1318. Accordingly, all the appeals are allowed. Order dated 28.5.2022 passed by learned Special Judge-II, Kullu in CrMP's Nos. 327 of 2022, State v. Prem Chand, 328 of 2022, State v. Balak Ram and 329 of 2022 titled State v. Raju, are modified to the extent that the appellants/sureties .
shall pay penalty of Rs.1.00 Lakh each only, which shall be deposited within two months with the learned trial Court, from the date of passing of this order.
All the appeals stand accordingly disposed of, alongwith all pending applications.
(Sandeep Sharma) Judge September 14, 2022 (Vikrant) r ::: Downloaded on - 15/09/2022 20:02:32 :::CIS