Kerala High Court
Kavirajan, S/O Vamadevan vs State Of Kerala on 11 August, 2021
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
CRL.A NO. 2242 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 1553/2004 OF ADDITIONAL DISTRICT
COURT (ADHOC), TRIVANDRUM, THIRUVANANTHAPURAM
APPELLANT/COUNTER PETITIONERS 2 AND 3:
1 KAVIRAJAN, S/O VAMADEVAN,
HOUSE NO.93, PUTHEN VEEDU, WARD NO.7, ANCHUTHENGU,
KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK.
2 NEELAKANTAN, S/O.RAMAN,
HOUSE NO.175, MAMOODU WARD NO.4, ANCHUTHENGU,
KADAKKAVOOR VILLAGE.
BY ADV D.KISHORE
RESPONDENT/PETITIONER:
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
SR.G.P.SMT.S.SEETHA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2242 OF 2006 2
JUDGMENT
It is a case wherein the learned Sessions Judge had shown leniency so as to reduce the fine amount to Rs.20,000/- and 15,000/- to the appellants respectively, though the bond amount comes to Rs.25,000/-. The legal position was very much settled by this court in Crl.Appeal No.95/2021 dated 14/07/2021. Paragraphs 5 and 6 of the judgment are extracted below for reference:
"5. When the bond amount was forfeited, the liability for the entire amount would arise at the same moment. Provisions are made in the Cr.P.C. by way of Section 446(3)to remit any portion of the penalty to be imposed and to enforce payment in part, but for which reasons should be recorded. It is not within the jurisdiction of the trial court either to reduce or to give up or to alter the penalty, which would be the legal consequence of the forfeiture of the bail bond except under Section 446 (3)Cr.P.C., for which, reasons must be recorded. Section 440 Cr.P.C. cannot be applied while dealing with forfeiture of bail bond under Section 446 Cr.P.C.. Section 440 Cr.P.C. basically deals with fixation of bond amount or reduction thereof and it should be done with due regard to the circumstances of the case and it should not be excessive. The exercise of discretion under Section 440 Cr.P.C. for fixing the bond amount is entirely different from that under Section 446(3) Cr.P.C.. The former one deals with pre-bail authority and the court can fix bond amount with due regard to the circumstances of the case, such as the gravity of the offence and other attending circumstances and it is the subjective satisfaction of the Magistrate/court for which, it is not at all necessary to record the reasons in writing. But, in the latter case, it would come into play as a legal consequences of violation of CRL.A NO. 2242 OF 2006 3 bail bond conditions on a post-bail stage and reasons must be recorded for giving remission of portion of penalty. Both these provisions are independent, hence governs different fields. The court cannot go back or revert back to Section 440 Cr.P.C. so as to have a discretion either to reduce the bail bond amount or to refix the same under Section 446 Cr.P.C.. In fact, under Section 446 Cr.P.C., the discretionary power vested with the court is so limited to the extent of fixing the quantum of penalty that can be remitted under sub-section (3) by recording reasons for it. The expression "at its discretion" in sub-section(3) was substituted by the words "after recording its reasons for doing so" by Amendment Act 25 of 2005 w.e.f. 23/06/2006 and thereby the legislature had taken away considerably the exercise of discretion by substituting the requirement of sufficient reasons to be recorded for giving remission. The application of sub-section(3) after its amendment by Act 25 of 2005 w.e.f 23/6/2006 was not considered by this court in Sahadevan's case (supra). Further, sub-section(3) of Section 446 Cr.P.C. was not applied so as to remit any portion of penalty. No specific reason was taken into consideration by this Court so as to comply with the requirement under sub-section(3) of Section 446 Cr.P.C.. Hence, the legal position laid down in Sahadevan's case (supra), without discussing the application of sub-section(3) of Section 446 Cr.P.C. and the benefit conferred for remission of portion of penalty, cannot be said to have the force of binding precedent.
6. It is the basic principle that all beneficial provisions should be followed scrupulously and ample opportunity should be given so as to make the provisions effective. The corollary is that it is the duty of the court to address the beneficial provision by giving sufficient opportunity to the party concerned to exhaust the benefit under the provision. If it is not addressed, the order will stand bad in law. In the instant case, though show cause notice was issued, no sufficient opportunity was given to the appellant to exhaust the benefit under Section 446(3) Cr.P.C.. The order is totally silent about the application of Section 446(3) Cr.P.C.."
2. Hence, the matter is remanded back to the trial court for fresh consideration in accordance with the legal position settled above and the impugned order will CRL.A NO. 2242 OF 2006 4 stand set aside. An opportunity may be given to the petitioner to apply under Section 446(3) Cr.P.C.. The parties shall appear before the trial court on 03/09/2021.
The Crl.Appeal is allowed accordingly.
Sd/-
P.SOMARAJAN JUDGE msp