RAM GOPAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner was facing trial before the Additional Chief Judicial Magistrate. Karauli for the offence under Sections 217 and 225 IPC. He remained absent on 21.12.81 and the bond furnished by him in the sum of Rs. 3,000.00 was forfeited. The petitioner appeared and requested for submitting a reply in order to show cause as to why he could not appear on 21.12.81. However, he did not submit any written reply. He then moved an application on 14.9.84 under Sec. 446(3) Crimial P.C. but this was dismissed on 20th April, 1985 on account of his absence. Another application was moved on 8.2.88. for reducing the amount to be forfeited from the bond and this application was dismissed on 15.7.88. The petitioner preferred an appeal and this was dismissed by the Additional Sessions Judge Karauli on 4.1.89. Against this order he has preferred this petition under Sec. 482 Crimial P.C.

(2.) The office has raised an objection that a miscellaneous petition against an appellate order is not maintainable. On this question, the learned counsel for the petitioner was heard and it can be said that the manner in which the objection has been raised cannot be accepted but the maintainability of a miscellaneous petition can be challenged on the ground that the same could not be presented when a revision lies and the petitioner should have come in revision before this Court. The order under Sec. 446 Crimial P.C. is an appealable order and that when the appeal against this order has been decided thin the order can be said to be a final order, against which a revision on the grounds as mentioned in Sec. 397 Crimial P.C. can be preferred. It cannot be said that a miscellaneous petition cannot be moved against the order of the appellate court in all cases. In view of this objection, the learned counsel for the petitioner has moved an application to the effect that this petition may be treated as a revision petition. This plea is accepted.

(3.) Coming to the merits of the matter, it has been contended that both the courts below have considered the question of the absence of the petitioner before the trial court but has not considered the question of remittance of the amount of the bonds. It is contended that under Sec. 446 (3) Crimial P.C. the court has a discretion to remit any portion of the penalty mentioned and enforce payment in part only and while deciding the application under Sec. 446 (3) Crimial P.C. the Magistrate or the Sessions Judge ought to have considered as to what portion of the penalty should be remitted. It has been contended that the forfeiture of a bond has to be made after considering some circumstances but then the amount which should be recovered requires different considerations. It is contended that the petitioner is a constable and he shall be put to a great financial burden if the part of the penalty is not remitted.