ROOP SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant Roopsingh was a surety for accused Ramkishore, who was one of the accused persons in special Criminal Case No. 145/84 in the Court of special Judge, Bhind. Accused Ramkishore defaulted in appearance on 24.4.93. His bail was forfeited and proceedings were started under section 446 Cr.P.C. against Ramkishore and surety Roopsingh. On the date next fixed i.e. on 19.7.93 while accused Ramkishore appeared, surety Roopsingh did not appear despite service of notice on him. The learned special Judge on that date passed an order that entire amount of bail bond of Rs. 5,000/ - be recovered from surety Roopsingh. Accused Ramkishore was allowed time to file reply to show cause against the penalty. On the next date i.e. on 20.7.1993 the reply filed by accused Ramkishore was considered. The learned special Judge considering the fact that accused Ramkishore had been sent by him to jail on the previous day, ordered that penalty of Rs. 150/ - be recovered from the forfeited personal bond of the accused.

(2.) SHRI Rakesh Saxena argued that there was unjust discrimination against the surety about whom it was ordered that the entire amount of Rs. 5,000/ - be recovered from him whereas in the case of accused Ramkishore it was ordered that only a small portion of penalty of Rs. 150/ - be recovered from him. The legal position appears to be that if any circumstances justifying remission occur subsequent to the order for recovery, then so long as the amount of penalty is not totally recovered, there is power under sub -section (3) of section 446 Cr.P.C.1973 to remit any portion or the whole of the penalty. Reference may be made to a decision of our High Court in Sualal v. State in 1957 MPLJ 330 = 1957 JLJ 278. The remission would not amount to reviewing of the earlier order directing recovery of the whole penalty. In the present case, accused Ramkishore was sent to jail, after the impugned order directing recovery of entire penalty of Rs. 5,000/ - from the surety. Subsequently upon consideration of the accused's reply, order was passed directing recovery of only a small part of penalty of Rs. 150/ - front the accused. On these subsequent circumstances it is open to appellant/surety Roopsingh to make an application before the special Judge for remission of the penalty ordered to be recovered from him: After such 'an application is made, the learned special Judge shall dispose it of in accordance with law. With these observations, the present appeal is summarily dismissed.