K.D. SHARMA, C.J.—This is an appeal filed by Moala Ram under section 449, Cr.P.C. against an order of the learned Sessions Judge, Bikaner, dated March 1, 1977, by which the appellants application under sub-section (3) of section 446, Cr.P.C. for remission of the penalty sought to be recovered from him under the bond for appearance was rejected on the ground that acceptance of such an application would amount to review of the previous order dated July 3, 1976, for recovery of the whole of the penalty.

2. The short facts giving rise to this appeal may be briefly stated as follows:-

3. The appellant was being tried in the court of the Sessions Judge, Bikaner for offences punishable under sections 364, 324 etc. I.P.C. During the pendency of the trial bail was granted to the appellant. The appellant furnished his personal bond in the amount of Rs. 5000/-. One Ishwar Ram stood surety for the appellant and filed his surety bond in the like amount for appearance of the appellant in the court. On September 17, 1975, the appellant did not appear in the court of the Sessions Judge, Bikaner, and, consequently, his bail bonds were forfeited and warrant for his arrest and production in court was issued. Notice was ordered to be issued to the appellant and his surety to pay the penalties under the bonds or to show cause why the amounts of the bonds filed by them be not realised from them. It appears from the record that the appellant and his surety did not turn up in court to pay the penalties under the bonds or to show cause why they should not be paid. The learned Sessions Judge, therefore, passed an order on July 3, 1976 that the whole of the penalties under the bonds be recovered from the appellant and his surety. Thereafter, the appellant presented an application to the court of the Sessions Judge presumably under section 446 (3) Cr.P.C. for remission of the penalties under the bonds. The Sessions Judge rejected the application, and refused to hear him on the ground that he was not empowered to review his previous order dated July 3, 1976. Aggrieved by the rejection of his application, the appellant has come up in appeal to this Court, as stated above.

4. I have carefully perused the record and heard Mr R. N. Bishnoi, learned counsel for the appellant, and Mr. D S. Shishodia Public Prosecutor, for the State. The short question that arises for determination in this appeal is whether under sub section (3) of section 446, Cr.P.C. the court could pass an order for the remission of any portion of the penalty under the bond at any time before the payment has been actually made. Mr. D.S. Shishodia Public Prosecutor, strenuously urged before me that it is not open to the court to pass such an order after the date when the court has passed the order directing the recovery of such penalty and proceeded to recover the same. In support of his above contention Mr. D.S. Shishodia referred me to Mohan Lal vs. State (1), wherein the following observations were made by his Lordship Honble Yashoda Nandan J:-

"A plain reading of the various sub-sections of section 514 leaves little room for doubt that an order remitting any portion of the penalty and enforcing payment of part of the amount of the surety bonds could be passed by the court only at the time it passed a final order forfeiting the surety bonds and for realisation of the amount thereof as penalty."

Mr. R.N. Bishnoi, learned counsel for the appellant on the other hand, placed reliance on Sualal Kushilal vs. State (2) and Govindmal vs. Kunj Biharilal (3) and contended on the strength of the observations made therein that the discretionary power under sub-section (3) of section 446, Cr.P.C. can be exercised by the court even, later-on, and even after the final order for the recovery of the whole of the penalty under the bond is made, provided there are good grounds justifying the remission of the portion of the penalty.

5. I have considered the rival contentions mentioned above and carefully perused the

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