Sodhi Ram vs State of Punjab

P.K. Jain, J.

This petition has been filed under section 401 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') against the order dated 19.3.1996, passed by the Additional Sessions, Judge, Hashiarpur, whereby the order dated 13.2.1996, passed by the Chief Judicial Magistrate imposing a penalty of Rs. 7000/ upon the petitioner was modified and the amount of penalty was reduced to Rs. 4000/.

The brief facts necessary for the disposal of this petition are that the petitioner stood surety for the accused Balbir Kumar in case FIR No. 133 of 1987, registered at Police Station Hoshiarpur, for the offences under sections 325/323/34, IPC. The said accused absented from the Court as such a notice was issued to the petitioner. As per report of the Police Station, the petitioner refused to accept the service and consequently an ex parte order was passed on 13.10.1993 by the Chief Judicial Magistrate whereby a penalty of Rs. 7000/ was imposed upon the petitioner. He moved an application before the said Magistrate stating therein that no service had been effected upon him and that the accused has already been acquitted on account of a compromise having been effected between the complainant party and the accused persons. This application was rejected by the Chief Judicial Magistrate by order dated 13.2.1996 (Annexure P.2). The petitioner went in appeal before the Court of Sessions and the penalty amount was reduced to Rs. 4000/ by the Additional Sessions by his impugned order dated 19.3.1996 (Annexure P.1). The petitioner has approached this Court under section 401 of the Code.

I have heard the learned counsel for the parties and have considered the admitted facts and circumstances as narrated above.

Section 446 of the Code reads as under:

"Section 446(3):

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

No indication is to be found in this provision as to the circumstances under which the Court will be justified in making an order in conformity therewith. The purpose of a surety bound is to secure the presence or the attendance of the accused and the position of a surety is nearly always not an easy one. The surety makes himself responsible for the conduct of the accused and often enough the surety has no control over the conduct of the accused. The surety expects the accused to act properly but the accused, often enough, does not choose to stand by the surety and sometimes jumps bail and this is exactly what has happened in the present case.

A case for the exercise of the discretion under Section 446(3) of the Code will properly arise in cases where the accused has been subsequently arrested or the amount forfeited is excessive and the surety is unable to pay. While exercising discretion under the said provision, it is not irrelevant to consider in such cases, where the surety did not act irresponsibly and there was no connivance or negligence on the part of the surety. The quantum of penalty must bear some corelation to the circumstances present in such a case as long continued absence of the accused, the nature of offence with which he is charged and the likelihood of the State being put to further exertion and expenses in apprehending the accused. The capacity or ability of the surety to pay the amount may well in certain circumstances be also a relevant fact. These views find affirmation in a judgment of the Mysore High Court, rendered in K. Rafudin Ahmed v. State of Mysore, 1973 Cri. L.J. 891 and a judgment of the Rajasthan High Court in Dayal Chand v. State of Rajasthan, 1982 Cri. L.J. 1008.

In the present case, the accused were facing trial for the offence under section 325/324/148/149, I.P.C. It is an admitted fact that the accused Balbir Kumar for whom the petitioner had stood a surety, absented from the proceedings, and his bail bond and the surety bond were forfeited. A notice was issued to the petitioner which was received back with the report of refusal on which the Chief Judicial Magistrate imposed a penalty of Rs. 7000/ upon the petitioner which was the total amount of the surety bond. The application of the petitioner was dismissed by the Chief Judicial Magistrate by a short order dated 13.2.1996 (Annexure P2) without going into the question as to whether the petitioner was served with the notice and whether there were circumstances for imposing lesser penalty upon him. It is also not disputed that by that time a compromise had been effected between the complainant party and the accused persons and on the basis of the compromise, the accused persons were acquitted. This fact was also not taken into account by the Chief Judicial Magistrate. However, in appeal the Additional Sessions Judge, reduced the amount of penalty to Rs. 4000/ taking into consideration the fact that subsequently the accused had appeared, compromise had been effected and the accused were acquitted. It is also an admitted fact that out of the sum of Rs. 4000/ the petitioner had already deposited a sum of Rs. 2000/ by way of penalty. The learned counsel for the petitioner has argued that the penalty of Rs. 2000/ was sufficient enough to meet the ends of justice as the accused had appeared, compounded the offence and were acquitted by the Court. Keeping in view the object of the provision of Section 446(3) of the Code, as discussed above, and the peculiar facts and circumstances of the present case, I agree with the learned counsel for the petitioner that the penalty of Rs. 2000/ would be enough to meet the requirements of law. The petitioner cannot be considered to be an accused person and the penalty to be imposed upon him should corelate to the facts and circumstances of the case.

For the reasons mentioned above, this petition is allowed. The amount of penalty imposed upon the petitioner under section 446 of the Code is hereby reduced to Rs. 2000/ which has already been deposited by the petitioner.