The court established that while a surety's bond must be forfeited for the accused's non-appearance, the court retains discretion to remit part of the penalty based on the circumstances surrounding the case.

JUDGMENT

1. I.A.1/2020 is filed for condoning the delay of 298 days in filing the appeal. For the reasons stated in the affidavit accompanying the application, delay is condoned. I .A.1/2020 is allowed.

2. This is an appeal under Sec. 449 of Criminal Procedure Code. The facts are that the appellant stood as surety for accused No.3 in S.C.2/2013 on the file o f III Additional District and Sessions Judge, D.K., Mangaluru. Since accused No.3 failed to appear before the court, the surety bond executed by the appellant for Rs.25, 000.00 was forfeited and a separate Criminal Miscellaneous Case bearing 905/2014 was registered against the appellant. The Tahsildar was ordered to attach the property of the appellant. The appellant sought remission in the bond amount by making an application under sec. 446 Cr.P.C. By order dated 30.8 .2017, the court below rejected the appellant's application and hence this appeal.

3. Heard Smt. Haleema Ameen for the appellant and Sri K.Nageshwarappa, the learned Government Pleader.

4. Smt. Haleema Ameen submits that accused No.3 was arrested and after conclusion of trial he was acquitted. In this view, the bail bond of the appellant should not have been forfeited. She also submits that the court below could have granted remission having regard to the fact of acquittal of accused No.3.

5. Government Pleader submits that irrespective of the result of the trial, the bail bond of the surety has to be forfeited once he fails to secure the presence of the accused and therefore there is no in firmity in the impugned order.

6. I find force in the argument of the Government Pleader. The fact of acquittal of accused No .3 is not a ground for dropping the proceedings against the appellant. I f a surety fails to secure the presence of the accused, necessarily bail bond has to be forfeited. But according to sec. 446 (3) Cr.P .C, the court may remit a portion of penalty by recording reasons. The extent o f remission to be granted lies within the discretionary power of the court in the background of facts and circumstances.

7. In the impugned order it is observed that the appellant met with an accident on 18 .5.2005 and he is suf fering from pain. It is true that the court below has not considered this ground. But the fact remains that accused No.3 absconded and it was beyond the reach of the appellant to trace him. In this view, trial court could have remitted ma jor portion of the bond amount. In the facts and circumstances, I find it fit to direct the appellant to pay a sum of Rs.8, 500.00 instead of entire bond amount of Rs.25, 000.00. Therefore appeal is partly allowed . Impugned order is modified directing the appellant to pay a sum of Rs.8, 500.00.