Darshan Kumar vs Unknown
2022 Latest Caselaw 8878 HP

              IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                         ON THE 31ST DAY OF OCTOBER, 2022

                                          BEFORE

                      HON'BLE MR. JUSTICE SANDEEP SHARMA




                                                                          .
          CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 737 OF 2022





    BETWEEN:





    1.       DARSHAN KUMAR S/O LATE SH. KISHORI
             LAL, RESIDENCE OF VILLAGE KOLTHA, P.O.
             LAGAUTI, TEHSIL ANNI, DISTRICT KULLU,
             HP, AGED ABOUT 28 YEARS





    2.       KAVITA DEVI W/O LATE SH. KISHORI LAL
             RESIDENCE OF VILLAGE KOLTHA, P.O.
             LAGAUTI, TEHSIL ANNI, DISTRICT KULLU,
             HP. AGED ABOUT 50 YEARS

    3.       NISHA KUMARI D/O LATE SH. KISHORI LAL,
             RESIDENCE OF VILLAGE KOLTHA, P.O.

             LAGAUTI, TEHSIL ANNI, DISTRICT KULLU,
             HP. AGED ABUT 24 YEARS
                                                                         PETITIONERS
    (BY MR. MOHAN SINGH, ADVOCATE)


    AND

    STATE OF HIMACHAL PRADESH
                                                                        RESPONDENT




    (BY MR. NARENDER GULERIA,
    ADDITIONAL ADVOCATE GENERAL





    WITH MR. SUNNY DHATWALIA,
    ASSISTANT ADVOCATE GENERAL)





         This petition coming on for orders this day, the court passed the following:

                                        O R D E R

By way of instant petition filed under S.482 CrPC, prayer has

been made on behalf of petitioners, who are legal heirs of deceased surety,

Kishori Lal, for quashing and setting aside order dated 15.6.2022 as well as

proceedings initiated against them under S. 446 CrPC, pending adjudication

before learned Additional Chief Judicial Magistrate, Court No. 1, Sundernagar,

District Mandi, Himachal Pradesh in case No. 200-1/2016 titled State v. Vikas

Chaudhary alias Vicky arising out of FIR No. 270 of 2015, registered under S.

376 IPC.

.

2. Precisely, the facts of the case, as emerge from the record, are that

late Shri Kishori Lal, who happens to be the predecessor-in-interest of the

petitioners, stood surety on 26.2.2016 for the accused Vikas Chaudhary alias

Vicky resident of Rajasthan in a case registered under S.376 IPC. Since the

aforesaid accused failed to put in appearance before learned court below, it

initiated proceedings under S. 446 CrPC against the surety, Kishori Lal.

Pursuant to aforesaid proceedings, Kishori Lal filed reply but could not remain

present in the court below on account of illness. Surety Kishori Lal died on

28.11.2020 and as such, learned court below, after his death, proceeded to

forfeit the amount of surety of Rs. 50,000/- to the State of Himachal Pradesh

and ordered for attachment of property of deceased Kishori Lal. Vide order

dated 15.6.2022, learned Additional Chief Judicial Magistrate, Court No.1,

Sundernagar ordered that as per report of Tehsildar, Anni, District Kullu,

surety Kishori Lal had expired on 28.11.2020 and mutation of inheritance has

been attested on 19.2.2022 in favour of the petitioners namely Darshan

Kumar, Nisha Kumari and Babita Devi i.e. legal heirs of deceased Kishori Lal.

Vide aforesaid order, learned court below also ordered issuance of warrant of

recovery to District Collector Kullu to recover the forfeited amount from the

property of surety, Kishori Lal, which now stands inherited by his legal

representatives i.e. petitioners herein and called for report for 25.8.2022, as

is evident from order dated 15.6.2022, Annexure P-1.

3. Being aggrieved and dissatisfied with the passing of the aforesaid

order, petitioners, who happen to be legal heirs of surety Kishori Lal, have

approached this court, praying therein to set aside aforesaid order of recovery

issued by learned court below.

.

4. Since Kishori Lal being surety of accused Vikas Chaudhary alias Vicky,

failed to cause his (Vikas Chaudhary) presence before learned court below

despite notice, it had no option but to initiate proceedings against Kishori Lal

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? Another question, "whether the deceased Kishori Lal had

received the summons before initiation of proceedings under S. 446 CrPC",

has no relevance, especially when impugned order, as has been taken note

herein above, was passed during the life time of surety namely Kishori Lal,

who after having received summons, also filed reply thereto, but failed to

cause presence of the accused Vikas Chaudhary alias Vicky.

5. 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 qua the land, which already stands inherited by the

petitioners herein, being legal heirs of late Kishori Lal, the surety. Before

considering the prayer made in the present petition, it would be apt to take

note of S.446(3) CrPC, which reads as under:

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

6. 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.

7. Question with regard to competence of Court to remit penalty

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

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 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 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 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 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."

8. 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 late Kishori Lal,

predecessor-in-interest of the petitioners stood surety for the accused Vikas

Chaudhary and executed surety bonds in the sum of Rs. 50,000/-. Since the

aforesaid surety has already expired, as has been taken note herein above, it

would be too harsh to call upon the petitioners, legal heirs of said surety, to

deposit the amount of surety or get the same recovered by attachment/sale of

property, which now stands transferred in the names of petitioners, being

legal representatives of deceased surety, Kishori Lal.

.

9. At this stage, learned counsel for the petitioners states that the

petitioners belong to a BPL family and are living in indigent circumstances, as

such, it would be too harsh upon them, if the warrant of recovery of Rs.

50,000/- is effected in its entirety and the entire family of the petitioners would

be left to starve.

10. Having carefully scanned entire record, this court is of the view that

petitioners deserve concession of reduction in penalty. Accordingly, the

present petition is allowed and order dated 15.6.2022 passed by learned

Additional Chief Judicial Magistrate, Court No. 1, Sundernagar, District Mandi,

Himachal Pradesh in Case No. 44/2016, is modified to the extent that the

petitioners shall pay sum of Rs. 5,000/- within a period of two months from the

date of receipt of a certified copy of this order. Resultantly, the order dated

15.6.2022, to the extent warrant of recovery has been issued to the District

Collector, is quashed and set aside. However, if the petitioners fail to deposit

the amount as quantified above, within the stipulated period, the order dated

15.6.2022 shall automatically revive and warrant of recovery shall be effected

by the District Collector.

11. The petition stands disposed of in the afore terms, alongwith all

pending applications.

(Sandeep Sharma), Judge October 31, 2022 (vikrant)