STATE OF ORISSA Vs. PURNA CHANDRA BAGH

JUDGEMENT

(1.) The question that falls for decision his reference is whether a Magistrate has powers to remit a portion of the bond amount under Sec. 446 (3) of the Code of Criminal Procedure after orders have been passed directing realisation of the entire bond amount on account of forfeiture of the bond. The reference has been made by the Sessions Judge, Koraput on his coming to know, on inspection of the Court of the Sub-Divisional Judicial - Magistrate, Koraput, that he had passed orders on 22-8-1985 in II (a) CC No, 474 of 1931 to starty a separate Misc. Case against the surety, the present opposite part, under Sec. 446 of the Code of Criminal Procedure and ask him to show cause as to why the bail amount shall not be realised from him. The opposite party appeared in the Court in pursuance of the notice and on 26-11-1987 order was passed of the surety being present and of no cause having been shown by him to the notice issued, and as such directing the matter to be put up on 11-12-1987. The case was not taken up on that day and was adjourned to 14-12-1987 on which date the order was passed that the opposite party was absent and that no cause had been shown on his behalf. The Court as such came to the conclusion that the opposite party had nothing to sub nit and passed orders that the entire bail bond amount of Rs. 500/- was imposed on him as penalty. The Court also directed issue of D.W. and conditional N.B.W. against the opposite party. Thereafter on several dates the case was called when the opposite party was absent. On 14-8-1989 the opposite party was present and filed a petition praying remission of the amount on the ground of he being a poor man and having dependants. The Court passed orders allowing the prayer directing the opposite party to pay penalty of Rs. 150/- in default to undergo S.I for two years. The learned Sessions Judge having come to know of the order was of the opinion that the Magistrate had committed an illegality as he had no authority to remit portion of the penalty amount after final orders had been passed on 14-12-1987 and hence has made the reference. None has appeared on behalf of the opposite party in spite of notice being sufficient.

(2.) Sec. 446 of the Code of Criminal Procedure, 1973, corresponds to Sec. 514 of the Code of Criminal Procedure 1898 wherein Sub-sec. (5) was the same as that of the present Sec. 446 (3). The questions is now raised before this Court engaged the attention of different High Courts. In AIR 1954 Bombay 365 (Balraj S. Kappor v. The State of Bombay), AIR 1957 M.P. 231 (Sualal Mushilal v. State), 1982 Cri. L.J. 2333 (Moola Ram v. State of Rajasthan) and 1983 (2) Crimes 145 (Ram Prasad v. State of M. P.) the view taken was that the power under Sec. 446 (3) or Sec. 514 (5), as the case may be, is available to be exercised by a Magistrate at any time before or after the cause to shown and orders have passed, whereas the view taken by the Allahabad High Court in 1974 Cri. L.J. 1407 (Mohan Lal and another v. State) is that once final orders have been passed by the Magistrate after the show cause has been filed, the Magistrate has no powers to alter the amount and remit portion of it.

(3.) The scheme of Sec. 446 is that where it is proved to the satisfaction of the Court that the bond executed has been forfeited, the Court is to record the grounds of such proof and is to call upon the person bound by the bond to pay the penalty or show cause why it should not be paid. When no cause is shown or if cause is shown and it is not found sufficient and the amount is not paid, the Court is to proceed to recover the penalty amount as a fine imposed under the Code. Sub-sec. (3) provides that the Court at its discretion may remit any portion of the penalty and enforce the payment of the part only. A close reading of the provision shows that the question of enforcement of the fine to be paid does not arise until the amount has been imposed upon the surety as the fine. The amount is not due to be paid merely on the forfeiture of the bond. It is only after a notice of show cause has been issued to the person bound by the bond and either the explanation filed by him is not found satisfactory or no explanation is filed at all that the Court is empowered to impose the fine and enforce the payment of the same under Sub-sec. (2). Only after such stage is over, i.e. imposition of the fine and the steps taken for its enforcement, that Sub-sec. (3) of Sec. 446 comes into operation where the Court can exercise its discretion to remit portion of the fine and enforce the payment earlier directed to be made in part only. It hence appears that the Court has a discretion to exercise at two stages, one while passing the final orders and the next if it is called upon to exercise discretion under Sub-sec. (3). Thus when the show cause is filed by the surety pleading circumstances for which the fine should not be imposed or that it should not be imposed in full, the Court may take such facts into consideration under Sub-sec. (2) and pass orders either imposing the full amount of the penalty as fine or a smaller amount or may even waive the same. Even after the penalty order has been passed and steps have been taken to enforce the payment, it will open to a person charged with the penalty to plead before the Court any circumstances for which the fine should not be realised and the Court is given the authority to decide the justifiability of the pleas and remit portion of it if necessary. It would hence not be correct to state that once final orders have been passed, the Court would not have the authority to remit portion of the fine determined in the final orders. The decision in 1974 Cri.L.J. 1407 holding the view that the Magistrate becomes powerless after passing final orders to remit any portion of the penalty hence does not appear to be laying down the correct law and instead I would accept the authorities of AIR 1954 Bombay 385 (supra), AIR 1957 M.P. 231 (supra), 1982 Cri.L.J. 2383 (supra) and 1983 (2) Crimes 145 (supra). AIR 1957 M.P. 231 makes a distinction that if the circumstances justifying remission of portion of the fine had occurred before the Court proceeds to consider the answer of the surety to the show Cause, notice, all these circumstances ought to be pressed at that stage and if not pressed, those cannot subsequently be considered. But such circumstances occurred subsequent to the order of recovery, then so long as the amount is not totally recovered there is no reason why power under Sub-sec.(5) of the old Code should not be exercised even later on and even after the final order for the recovery of the whole amount is made.To me it appears that the preposition has been rather broadly stated. A surety may bring to the notice of the Court circumstances for which he was not able to bring to the notice of the Court at the time of show cause the justifying circumstances necessitating decision of the Court as regards the correct amount of fine to be imposed or not to be imposed at all. If the Court feels that there were justifiable reasons for which the surely 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.