Can a criminal court remit any portion of the penalty or enforce only its part payment under Section 446 (3) of the Code of Criminal Procedure 1973 pursuant to forfeiture of the surety bond and after steps for recovery of penalty have been initiated? The above short but interesting question has arisen in the following circumstances.

2. Petitioners executed surety bonds to bail out an accused who was facing trial in the court for an offence punishable under Section 138 of the Negotiable Instruments Act. Subsequently the accused failed to appear before the court. Coercive steps were initiated against him. Though notices were issued to the petitioners/sureties, they failed to procure attendance of the accused before the court. Therefore the surety bonds were forfeited and the petitioners were directed to pay Rs.5,000/- each as penalty. The order imposing the penalty was passed by the learned Magistrate after issuing show cause notice to the sureties and after hearing them as provided under Section 446 (1) of the Code. The above order was passed on July 26, 2001.

3. The amount of penalty was not paid by the petitioners. Therefore recovery proceedings were initiated against them as provided under the Kerala Revenue recovery Act. Annexure A and B are true photocopies of the notices issued to them under the Act.

4. However, in the meanwhile there was another development. It appears that the accused either re-surfaced by himself or he was produced before the court. The case pending against him was settled between the parties. The accused was acquitted under section 256 of the Code. In the above circumstances an application was filed by the petitioners before the learned Magistrate with a prayer that “a major portion of the penalty” may be remitted and only a part payment be enforced. The learned Magistrate dismissed the above application by Annexure D order dated November 21, 2001, which has been impugned in this case filed under Section 482 of the Code.

5. Learned counsel for the petitioners submits that clause (3) of Section 446 of the Code empowers the Court “to remit any portion of the penalty” and to enforce only part payment thereof. According to the learned counsel the discretion vested with the court can be exercised at any stage and even after the order imposing the penalty has been passed, but of course before recovery has been effected.

6. Chapter XXXIII of the Code deals with provisions relating to bail and bond. Section 440 under the above chapter provides that the “amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive”. The Police Officer or the Court, as the case may be, is empowered to fix the quantum of money for the bond to be executed by the accused and his sureties, if any, for releasing him on bail. The number of sureties can also be at the discretion of the officer or the court. The bond shall of course contain the conditions if any that are to be imposed. Sufficiency or fitness of the sureties is subject to the satisfaction of the Court. Sub-section (4) of Section 441 states that the Court may accept affidavit in proof of fitness or sufficiency of the sureties and may even hold an enquiry if it chooses to do so. The bond executed by the accused and the sureties are liable to be forfeited, if any of the terms or conditions in the bond is violated.

7. As mentioned earlier, the petitioners were directed to show cause why penalty should not be imposed on them for their failure to produce the accused before the court on the date fixed for hearing. Sub-section (2) of Section 446 provides that if the sureties do not show sufficient cause and they do not pay the penalty imposed on them, the Court may proceed to recover the same as though it is a fine imposed by the Court under the Code. If recovery becomes impossible, the sureties are liable to suffer imprisonment in civil jail for a term which may extend to six months.

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