The court has the power to remit the penalty amount under Section 446(3) of the Code of Criminal Procedure, particularly when the sureties were not in connivance with the accused in his default to appear in court.

( 1 ) THE Judgment of the Court was as follows : being aggrieved by an order dated September 30, 2005 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Kolkata in Criminal appeal No. 37 of 2002 dismissing the order passed by the learned Metropolitan magistrate, 12th Court, Kolkata on March 12, 2002 in connection with a proceeding under Section 446 of the Code of Criminal Procedure Code, the petitioners preferred this application invoking the inherent jurisdiction of this court.

( 2 ) THE brief backgrounds of this case are as follows : -One American National, Schneider Masteen Konsad was arrested in connection with a case under Section 14 of the Foreigners Act, 1946 and under sections 419 and 420 of the Indian Penal Code and then was released on bail. While they were released on bail, the petitioners stood sureties for Rs. 25,000/- each. Subsequently, the said accused was permitted to go to his native place at U. S. A. In terms of the Court's order, the petitioner No. 1 stood surety for Rs. 75,000/- in addition to the earlier amount. However, the said accused after leaving this country never returned and thus the learned Court below cancelled his bail and directed the sureties to produce him. On the failure of the sureties to produce the accused persons before the Court, the learned court initiated a proceeding under Section 446 of the Code of Criminal procedure dated January 18, 2001 and directed forfeiture of the bond amounts and call upon the petitioners, the sureties to show cause why the payment of the bond amount should not be enforced against them be asked to pay the penalty. In response to the said show cause notices on February 28, 2001, the petitioners appeared in Court and prayed for exemption from the payment of the forfeited amount. However, the learned Court below by an order dated march 8, 2001 rejected such prayer. The petitioners never challenged the said order and the same has become final. Thereafter on the prayer of the petitioners time was granted on several occasions to enable them to make the penalty thereof. The petitioners then on March 12, 2002 filed another application before the learned Magistrate praying that they may be permitted to deposit a sum of rs. 100/- per month for liquidation of the forfeited amount. However, the learned magistrate rejected the said application. Against the aforesaid order the petitioners preferred an appeal before the learned Sessions Court, Kolkata and the learned Additional Sessions Judge, 4th Fast Track Court, Kolkata by his order dated September 30, 2005 dismissed the said appeal and affirmed the order passed by the learned Magistrate.

( 3 ) AS urged by Mr. Sandipan Ganguly, the learned Counsel of the petitioner, his learned Junior, Mr. Ayan Bhattacharjee, Advocate is permitted to argue the case.

( 4 ) AT the very outset, Mr. Bhattacharjee submitted that in this case he would pray for remission of penalty rather a decision on merit. Mr. Bhattacharjee further submitted that it would be beyond the capacity of the petitioners, poor law clerks, to pay such a huge penalty. According to Mr. Bhattacharjee under section 446 (3) of the Code of Criminal Procedure the Court has ample power to remit any portion of the penalty and enforce payment in part only. In support of his submissions Mr. Bhattacharjee relied on the decision of the Apex Court in the case of Md. Kunju and Anr. v. The State of Karnataka, reported in 2000 Cr lj 165 (SC ).

( 5 ) MR. Maltick, learned Advocate, appearing on behalf of the State in his usual fairness submitted although the order impugned does not suffers from illegality still this Court is empowered in exercise of its judicial discretion to remit the penalty amount to such extent as Court may found just and proper.

( 6 ) HEARD, the learned Advocates appearing on behalf of the parties, considered their respective submissions and perused the materials on record and the decision of the Apex Court.

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