CRA/295/1990
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                              CRA No. 295 OF 1990




 07     08.04.2021           This matter is taken up through video conferencing
                     mode.
                             The instant appeal under section 449 of CrPC has been
                     directed against the order dated 14.08.1990 passed by the
                     learned Additional Sessions Judge, Bhadrak, Balasore in Misc.
                     Case No. 119 of 1989 corresponding to Sessions Trial Case No.
                     86/22 of 1989 wherein the appellant who was a bailor on behalf
                     of one Ramesh Rao, accused has been directed to pay a sum of
                     Rs.5000/- (rupees five thousand) as penalty and also issued
dutta                D.W. for realization of the said amount.
                             The brief facts leading to filing of the appeal is that the
                     petitioner stood as a surety and a bailor for one Ramesh Rao,
                     accused in Sessions Trial Case No. 86/22 of 1989 pending in the
                     court of learned Additional Sessions Judge, Bhadrak, Balasore.
                     Learned Additional Sessions Judge, Bhadrak, Balasore while
                     directing release of the said accused Ramesh Rao, further
                     ordered that he should appear before the learned Additional
                     Sessions Judge, Bhadrak on 14.09.1989.        On 14.09.1989 the
                     accused suddenly fell ill.   He did not attend court of learned
                     Additional Sessions Judge, Bhadrak and the appellant had no
                     knowledge of non-appearance of the said accused on that date.
                     Learned Additional Sessions Judge while issuing N.B.W. against
                     the accused also issued a notice to show cause to the appellant
                     and pursuant to the aforesaid notice the appellant appeared and
                     filed a show cause contending inter alia that the accused was ill
                     and he could not appear on the date fixed. Subsequently the
                               2




accused      appeared   in   the    case   and    by   judgment    dated
18.12.1989

passed in Sessions Trial No. 86/22 of 1989, the said accused Ramesh Rao was acquitted as it was found that the accused was not guilty of any charges.

Being aggrieved and dissatisfied by the impugned order dated 14.08.1990 passed by the learned Additional Sessions Judge, Bhadrak in Misc. Case No. 119 of 1989 arising out of Sessions Trial No. 86/22 of 1989 rejecting the application and imposing the entire forfeited bail amount of Rs.5,000/- on the appellant, the present appeal has been preferred.

Mr. S.D.Das, learned senior counsel on behalf of the appellant has submitted with vehemence that the accused Ramesh Rao who faced trial has been acquitted vide judgment dated 18.12.1989 in Sessions Trial No. 86/22 of 1989 and the impugned order of penalty which was passed on 14.08.1990, by then the accused was acquitted. Therefore, the learned Additional Sessions Judge who was in seisin of the case, on erroneous appreciation of the facts and circumstances of the case, has imposed penalty which is liable to be set aside.

As against the submissions of learned senior counsel for the appellant, Mr. K. Gaya, learned Additional Standing Counsel for the State has stoutly defended the impugned order dated 14.08.1990 on the ground that the learned Additional Sessions Judge, Bhadrak was conscious and cognizant of the fact that the accused Ramesh Rao was acquitted in Sessions Trial No. 86/22 of 1989 on 18.12.1989 while passing the impugned order dated 14.08.1990. Therefore, by no stretch of imagination it can be

conceived that the learned Additional Sessions Judge, Bhadrak was oblivious of the acquittal of the accused, Ramesh Rao. Therefore, the impugned order warrants no interference by this Hon'ble Court.

Before adverting to the rival submissions, it would be apposite to refer to section 446 of Cr.P.C. which reads as follows :

"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 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. 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."

On perusal of the order dated 18.12.1989 passed by the learned Additional Sessions Judge, Bhadrak in Sessions Trial No. 86/22 of 1989 it appears that the accused was charged under section 399, 402 IPC and 9(3) of Indian Explosives Act for preparation by being armed with bombs and knife for committing dacoity in the house of Baidhar Panda of Bagda Binayakpur and for having assembled for the purpose of committing dacoity in the house of the above mentioned Baidhar Panda and for having unlawful possession of bombs etc.

The accused persons were found not guilty of the charges under sections 399, 402 IPC and 9(B) of Indian Explosives Act and were acquitted thereunder and were set at liberty forthwith.

Admittedly the appellant was not aware of the fact regarding non-appearance of the accused Ramesh Rao before

the learned Additional Sessions Judge, Bhadrak on 14.09.1989. As a result N.B.W. was issued against the said accused persons and notice was issued to the present appellant to file show- cause. Accordingly the appellant appeared and filed show- cause. Learned Additional Sessions Judge, Bhadrak being not satisfied with the explanation/show-cause directed to pay a sum of Rs.5000/- as penalty.

Vide order dated 6.3.1991, the instant appeal was admitted and in Misc. Case No.83 of 1991 realisation of fine amount was stayed. On perusal of the impugned order dated 14.08.1990, it is quite apparent that the learned Additional Sessions Judge, Bhadrak while awarding penalty of Rs.5000/- ought to have considered the fact that the quantum of penalty has a nexus or co-relation to the circumstances present in a case such as the period of absence of the accused, nature of offences committed and inconveniences caused to the court by the non-appearance of the accused and likelihood of the State being put to exertion and expenses in apprehending the accused, convenience or negligence on the part of the surety and the poverty or ability of the surety to pay the amount not having been considered by the learned Additional Sessions Judge, the impugned order warrants interference.

The view of the Court gets fortified by the decision of this Court reported in (1993) 6 OCR 638 (State of Orissa v. Purna Chandra Bagh) wherein this Court by examining the provisions of Section 446 of the Code of Criminal Procedure has been pleased to inter alia, hold :

"...............If the Court feels that there were

justifiable reasons for which the surety could not bring to the notice of the Court the circumstances even earlier existing which would have justified a lenient view to be taken, the Court would not be debarred to consider such circumstances. Taken as a whole the entire provisions of Sec. 446(2) and (2) are intended to vest in the Court the power to consider genuine grievances of the person bound by the bond and give remedy if the same is otherwise justified.

In the case Mohammed Kunju and another v. State of Karnataka reported in (1999) 8 Supreme Court Cases 660, while interpreting Section 446(3) on the question of remission of penalty, it has been inter alia, observed :

".............No doubt Section 446(3) of the Code empowers the court to grant such remission. It is within the discretion of the court to grant remission and to decide the extent of the remission. Such a discretion must be exercised judicially and for good reasons."

At the cost of repetition, it is reiterated that on the date of passing of the impugned order dated 14.08.1990 the accused Ramesh Rao was acquitted and the appellant has filed the show cause reply explaining the reasons for his non-appearance. In the meantime more than three decades have elapsed. This Court in the interest of justice coupled with decisions cited (supra), is inclined to allow the appeal and set aside the impugned order dated 14.08.1990. Accordingly the impugned order dated 14.08.1990 is set aside and the appeal stands allowed.

The CRA is disposed of accordingly. LCR be returned forthwith.

As the restrictions due to resurgence of COVID-19

situation are continuing, learned counsel for the partite may utilize a print out of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notification No.4587 dated 25.3.2020 as modified by Court's Notice No. 4798 dated 15th April, 2021.

.........................

P. Patnaik, J.