Valsan vs State Of Kerala
2021 Latest Caselaw 14577 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                       CRL.A NO. 95 OF 2021
AGAINST THE ORDER IN M.C.NO.07/2018       IN SC 850/2017 OF ADDITIONAL
          SESSIONS COURT - II, NORTH PARAVUR, ERNAKULAM

APPELLANTS/COUNTER PETITIONERS:

    1     VALSAN
          AGED 54 YEARS
          S/O.VASUDEVAN,
          PALAPPURATH HOUSE,
          KODUVAZHANGA KARAYIL,
          ALANGADU, PARAVUR,
          ERNAKULAM DISTRICT.
    2     VISNI,
          AGED 38 YEARS
          D/O.VISWAN,
          KUNNUKATTIL HOUSE,
          KIZHAKKUMPURAM,
          CHENDAMANGALAM, PARAVUR,
          ERNAKULAM DISTRICT.


          BY ADV. K.NIRMALAN

RESPONDENTS/COMPLAIANT/STATE:

          STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          ERNAKULAM-682031.


          BY ADV.SRI.E.C.BINEESH, PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION              ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 95 OF 2021
                                    2

                                                                     CR

                              JUDGMENT

The appellants, the sureties, came up against

the order under Section 446 Cr.P.C. imposing penalty

@ RS.50,000/- each by forfeiting bond amount of

Rs.50,000/- each on the ground of violation of bail

bond conditions by the accused involved in an

alleged offence under Section 20 (b) (ii)(B) of NDPS

Act.

2. A mere perusal of the order would show that

a show cause notice under Section 446 Cr.P.C. was

issued calling upon the party either to pay the

penalty or to show cause, to which no explanation

was given.

3. The decision rendered by this Court in

Sahadevan and Another v. State of Kerala (2017 KHC

981) was brought to the notice of this Court in

support of the argument that the court shall not

impose penalty "mechanically" and relied on CRL.A NO. 95 OF 2021

paragraph 4 of the judgment, which is extracted

below for reference :

"It is to be borne in mind that S.440 Cr.P.C. says that the amount of every bond executed under Chapter XXXIII shall be fixed with due regard to the circumstances of the case and shall not be excessive. S.441 Cr.P.C.

      Deals   with   bond  of    accused   and
      sureties.    On a reading of S.446

Cr.P.C., it is clear that forfeiture of a bond is automatic in case the accused and the sureties commit a breach of the conditions. No act or intervention of the Court is required for forfeiting a bond. It has been held in a catena of decisions that on forfeiture of the bond, the Court shall not impose penalty mechanically. The facts and circumstances leading to forfeiture of the bond should be considered. It is also submitted by the learned counsel for the appellants that despite making a request before the Court below for some more time to produce the accused, the Court below took stringent action against the appellants. It is also submitted that the entire bond amount has been forfeited without application of mind. All these aspects are legally unsupportable and therefore, this Court has no other option, but to interfere with the order."

(emphasis supplied)

4. It was submitted that based on the

abovesaid discussion, this Court allowed the appeal

confirming imposition of penalty on the appellants CRL.A NO. 95 OF 2021

and reduced the penalty to Rs.5,000/- each on them,

hence pressed for an order in tune with the said

judgment. On going through the said judgment, it is

clear that Section 446 Cr.P.C. was considered only

for the purpose of holding that forfeiture of bond

is automatic in the case of accused and the sureties

commit breach of the conditions.

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 CRL.A NO. 95 OF 2021

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 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, CRL.A NO. 95 OF 2021

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 CRL.A NO. 95 OF 2021

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, CRL.A NO. 95 OF 2021

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.. The benefit or its entitlement

under that provision was not either taken up or

addressed. Hence, the order is bad in law and is

liable to be set aside. I do so.

7. The matter is remanded back to the trial

court for proper disposal by affording an

opportunity to the appellant to apply under Section

446(3) Cr.P.C. The parties shall appear before the

trial court on 25.08.2021 and the trial court shall

dispose of the matter within a time schedule of two

months from the date of appearance of the parties.

The criminal appeal is allowed accordingly.

Sd/-

P.SOMARAJAN JUDGE SV CRL.A NO. 95 OF 2021

APPENDIX

APPELLANTS' ANNEXURE

ANNEXURE A1 THE TRUE COPY OF THE DEMAND NOTICE DATED 13.11.2019.

ANNEXURE A1(A) THE TRUE COPY OF THE DEMAND NOTICE DATED 6.12.2019.

RESPONDENT'S ANNEXURE: NIL

//TRUE COPY//

Sd/-

PA TO JUDGE