1. Can a person be directed to undergo imprisonment in civil jail, under Section 446 of the Code, before exhausting steps to recover the penalty? Mainly, this question arises in this appeal, filed under Section 449 of the Code.

2. Appellant was a surety for the accused and he executed a bond for appearance of accused under Section 441 of the Code, with the bond amount Rs.25,000/- before the Additional Sessions Court. The accused did not appear in court, and hence, notice was issued to appellant and the other surety. Despite giving notice, appellant did not appear in court, and hence she was directed to pay Rs.25,000/- as penalty. It was also ordered by lower court that if such amount is not paid, she will undergo civil imprisonment for six months. The said order is under challenge in this appeal, under Section 449 of the Code.

3. Learned counsel for appellant, Sri. Manu Tom submitted that petitioner is an illiterate woman, who happened to stand as surety for the accused and when she got notice from the court below, she approached the accused and his counsel. They assured her that accused would appear before the court. Believing these words, she did not appear in court and hence, the impugned order was passed. The accused, however, appeared in court after passing of the impugned order and he was acquitted also.

4. Learned counsel for appellant also submitted that the other surety who also executed the same bond along with appellant challenged the same order before this court in Criminal Appeal No.2585 of 2008 and another bench of this court took this took a lenient view in the said appeal and penalty was reduced to Rs.3000/-, as per order dated 27.11.2008. Therefore, appellant may also be treated equally and penalty be reduced, it is submitted.

5. On hearing both sides and on considering the various facts and circumstances of this case, and also on going through the order passed by another bench of this court in Crl. Appeal No.2585 of 2008, I find no reason to reject the request to reduce penalty. Both sureties are similarly placed and hence, this is a fit case where a portion of the penalty can be remitted and payment of only an amount of Rs. 3000/- be enforced against appellant under Section 446(3) of the Code.

6. Learned counsel for appellant further submitted that imprisonment of 6 months ordered by trial court also requires intervention and it may be reduced proportionately to one month. On a reading of Section 446 of the Code, I find that such request cannot be accepted. Section 446 of the Code (excluding portion which are not quite relevant to dispose of this appeal) is extracted hereunder:

"S. 446. Procedure when bond has been forfeited.--(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or xxxx, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Explanation.--A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part onl