Point of Law: Procedure when bond has been forfeited - Without discussing application of sub-section(3) of Section 446 Cr.P.C. and benefit conferred for remission of portion of penalty, cannot be said to have force of binding precedent.

JUDGMENT :

The appellants, the sureties, came up against the order under Section 446 Cr.P.C. imposing penalty @ Rs.50,000/-each by forfeiting bond amount of Rs.50,000/-each on the ground of violation of bail bond conditions by the accused involved in an alleged offence under Section 20 (b) (ii)(B) of NDPS Act.

2. A mere perusal of the order would show that a show cause notice under Section 446 Cr.P.C. was issued calling upon the party either to pay the penalty or to show cause, to which no explanation was given.

3. The decision rendered by this Court in Sahadevan and Another v. State of Kerala (2017 KHC 981) was brought to the notice of this Court in support of the argument that the court shall not impose penalty “mechanically” and relied on paragraph 4 of the judgment, which is extracted below for reference :

“It is to be borne in mind that S.440 Cr.P.C. says that the amount of every bond executed under Chapter XXXIII shall be fixed with due regard to the circumstances of the case and shall not be excessive. S.441 Cr.P.C. Deals with bond of accused and sureties. On a reading of S.446 Cr.P.C., it is clear that forfeiture of a bond is automatic in case the accused and the sureties commit a breach of the conditions. No act or intervention of the Court is required for forfeiting a bond. It has been held in a catena of decisions that on forfeiture of the bond, the Court shall not impose penalty mechanically. The facts and circumstances leading to forfeiture of the bond should be considered. It is also submitted by the learned counsel for the appellants that despite making a request before the Court below for some more time to produce the accused, the Court below took stringent action against the appellants. It is also submitted that the entire bond amount has been forfeited without application of mind. All these aspects are legally unsupportable and therefore, this Court has no other option, but to interfere with the order.” (emphasis supplied)

4. It was submitted that based on the abovesaid discussion, this Court allowed the appeal confirming imposition of penalty on the appellants and reduced the penalty to Rs.5,000/-each on them, hence pressed for an order in tune with the said judgment. On going through the said judgment, it is clear that Section 446 Cr.P.C. was considered only for the purpose of holding that forfeiture of bond is automatic in the case of accused and the sureties commit breach of the conditions.

5. When the bond amount was forfeited, the liability for the entire amount would arise at the same moment. Provisions are made in the Cr.P.C. by way of Section 446(3) to remit any portion of the penalty to be imposed and to enforce payment in part, but for which reasons should be recorded. It is not within the jurisdiction of the trial court either to reduce or to give up or to alter the penalty, which would be the legal consequence of the forfeiture of the bail bond except under Section 446 (3)Cr.P.C., for which, reasons must be recorded. Section 440 Cr.P.C. cannot be applied while dealing with forfeiture of bail bond under Section 446 Cr.P.C.. Section 440 Cr.P.C. basically deals with fixation of bond amount or reduction thereof and it should be done with due regard to the circumstances of the case and it should not be excessive. The exercise of discretion under Section 440 Cr.P.C. for fixing the bond amount is entirely different from that under Section 446(3) Cr.P.C.. The former one deals with pre-bail authority and the court can fix bond amount with due regard to the circumstances of the case, such as the gravity of the offence and other attending circumstances and it is the subjective satisfaction of the Magistrate/court for which, it is not at all necessary to record the reasons in writing. But, in the latter case, it would come into play as a legal consequences of violation of bail bond conditions on a post-bail stage and reasons must be recorded for giving remission of portion of penalty. Both these provisions are in