Punjab-Haryana High Court
Gagandeep vs State Of Haryana on 14 August, 2023
Neutral Citation No:=2023:PHHC:111218
CRA-S-4578-SB-2017 (O&M) 2023:PHHC:111218 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
SR. No.236
CRA-S-4578-SB-2017 (O&M)
Date of decision:14.08.2023
Gagandeep
...Petitioner
Versus
State of Haryana
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE N.S. SHEKHAWAT
Present: Ms. Harmanpreet Kaur, Advocate for the appellant.
Mr. Gaurav Gurcharan Singh Rai, DAG, Haryana.
Mr. Amit Chaudhary, Advocate,
for the complainant.
N.S. SHEKHAWAT, J.
1. The appellant has impugned the order dated 01.12.2017 passed by Additional Session Judge, Ambala, whereby a penalty of Rs.40,000/- was imposed on the appellant under Section 446 of the Code of Criminal Procedure, 1973 for not producing the accused Chatar Singh in the Court.
2. As per the case of the prosecution, one FIR No.330 dated 03.10.2016 under Sections 379-A/411/34 IPC was registered at Police Station Baldev Nagar, Ambala against Chatar Singh. Chatar Singh was known to the appellant and he stood surety for him. However, during the course of the trial, Chatar Singh did not appear and was declared as proclaimed person. A notice under Section 446 Cr.P.C. was issued to the appellant and when he failed to produce Chatar Singh despite granting an opportunity, a penalty of Rs.40,000/- was imposed on the appellant.
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3. Learned counsel for the appellant vehemently argued that Chatar Singh was known to the appellant and requested the appellant to stand surety for him. He had assured the appellant that he would appear on each and every date. The appellant told him that he was not having any property in him name, but was only having a motorcycle registered on his name. During the course of hearing, Chatar Singh absented and the appellant tried his level best to locate the accused. Even the appellant visited the native village of Chatar Singh twice, but his whereabouts were not even known to his family members and ultimately Chatar Singh was declared as a proclaimed offender. Learned counsel for the appellant further submitted that the appellant was the student of B.Tech. 1st Year and had no source of income. He had no other movable or immovable property in his name except the motorcycle, which too was given to him by his parents. Apart from that, he had stood surety for Chatar Singh in a good faith and was not aware of the consequences of filing of the surety bond. Consequently, a prayer was made to remit a portion of the penalty, while exercising its appellate jurisdiction.
4. 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.
5. I have heard learned counsel for the parties and perused the impugned judgment and all other documents of the file.
6. 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:
2 of 4 ::: Downloaded on - 17-09-2023 23:27:35 ::: Neutral Citation No:=2023:PHHC:111218 CRA-S-4578-SB-2017 (O&M) 2023:PHHC:111218 3 "(3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only."
7. 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 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."
8. 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 3 of 4 ::: Downloaded on - 17-09-2023 23:27:35 ::: Neutral Citation No:=2023:PHHC:111218 CRA-S-4578-SB-2017 (O&M) 2023:PHHC:111218 4 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.
9. In the present case also, learned counsel for the appellant has submitted that the appellant is a poor person and was a student and was not in a position to pay the penalty of Rs.40,000/-. Even he did not own any property and had made all efforts to locate the accused in the present case. Consequently taking a lenient view of the matter, the petitioner deserves the reduction of penalty and the impugned order dated 01.12.2017 passed by Additional Session Judge, Ambala is modified to the extent that the petitioner shall pay a penalty of Rs.15,000/-.
10. Leaned counsel for the appellant submits that the said penalty of Rs.15,000/- has already been deposited by him and as a consequence, the penalty is ordered to be reduced to the amount of Rs.15,000/-, which has already been deposited by the appellant.
11. In view of the above, the present petition stands disposed of in the above terms. Pending application, if any, shall also stand disposed of.
(N.S. SHEKHAWAT)
14.08.2023 JUDGE
mks
Whether Speaking/Reasoned: YES / NO
Whether Reportable: YES / NO
Neutral Citation No:=2023:PHHC:111218
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