Budhinath Tad vs State and Others

P.K. Mohanti, J.—This revisional application is by a surety who has been called upon to pay the entire amount stipulated in the bail bond on forfeiture.

Panju Ram, a resident of Delhi was convicted u/s 395, Indian Penal Code and was sentenced to undergo R.I. for 10 years in Sessions Trial No. 11/34 of 70/69 by the learned Assistant Sessions Judge of Puri. He preferred Criminal Appeal No. 249 of 1970 in this Court and was ordered to be released on bail for a sum of Rs. 5,0001- with two sureties for the like amount to the satisfaction of the Sub-Divisional Magistrate, Puri. On 16-4-1973 the Petitioner and one Purusottam Palai executed two surety bonds each for a sum of Rs. 5, 000/ - and accordingly the convict was released on bail. Ultimately, the Criminal Appeal was dismissed and notices were issued to the sureties to produce the convict. - But they filled to produce him on the date fixed. Proceedings u/s 514, Criminal Procedure were instituted against them for the enforcement of the bonds. A notice was caused to be served on the Petitioner to show cause why the penalty should not be realised from him. He appeared in Court and filed a show-cause denying execution of the bond. The learned Assistant Sessions Judge held an enquiry into the matter and on a consideration of the evidence came to the finding that the bond was duly executed - by the Petitioner and directed issue of a distress warrant against him for realisation of the entire amount of Rs. 5, 000/

Several contentions were raised in the revisional application, including the contentions about the validity of the bond and the power and jurisdiction of the learned Assistant Sessions Judge to forfeit the same. At the time of hearing, Mr. Mohanty, the learned Counsel for the Petitioner did not press those objections and, in my opinion, he did so rightly. He, however, submitted that the determination of the amount payable as penalty clearly called for application of the mind by the Court. His further submission is that the learned Judge has not assigned any reasons as to why the entire sum of Rs. 5. 000/ - should be levied as a penalty. In my opinion, the submissions carry considerable force.

Law does not require that the entire sum mentioned in the bond is to be paid automatically in case there is a breach of the terms thereof. Section 514(5), Criminal Procedure Code, 1898 provides:

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

The above provisions do not, however, indicate the circumstances under which the Court will be justified in making an order remitting a portion of the penalty or reducing the penalty. As the amount to be recovered under the bond is a penalty, its determination must be on the basis of the application of the mind and the exercise of judicial discretion. The quantum of penalty must bear some correlation to the circumstances present in a case, such as, long continued absence of the accused, nature of the offence committed by him, inconvenience caused to the Court by the nonappearance of the accused, likelihood of the State being put to exertion and expenses in apprehending the accused, connivance or negligence on the part of the surety and the poverty or ability of the surety to pay the amount. A case for the exercise of the discretion u/s 514(5), Code of Criminal Procedure will properly arise in cases where the accused has been subsequently arrested.

Mr. Mohanty submitted that the convict Panju Ram was undergoing medical treatment at Delhi and has in the meantime been arrested. He wants to move the learned Assistant Sessions Judge for reducing the penalty. If the accused has been actually arrested in the meantime and if a prayer is made the learned Assistant Sessions Judge for reduction of the penalty, it will be open to him to apply his mind to the circumstances present in the case for determination of the quantum of penalty.

Subject to the above observations, the criminal revision is dismissed.