Point of Law: Section 446 Cr.P.C, clearly empowers a court to, at its discretion, remit any portion of penalty in peculiar facts and circumstances of case.

JUDGMENT :

Sandeep Sharma, J.

By way of instant criminal appeal filed under S.449 (ii) Cr.P.C, challenge has been laid to order dated 26.12.2022, passed by learned Special Judge, Mandi, District Mandi, H.P., in Cr.MA No. 536 of 2018 titled as State of H.P. Versus Karam Singh, whereby penalty to the tune of Rs. 50,000/- has been imposed upon the appellant on account of his failure to cause presence of the accused in the aforesaid sessions trial.

2. Precisely, the facts of the case, as emerge from the record, are that FIR 64/1 dated 18.2.2014, under Section 20 of the NDPS Act, was registered by Police Station Balh, District Mandi, H.P., against the person namely Somveer alias Somu. After completion of investigation, police presented challan in the court of learned Special Judge, Mandi, which is pending adjudication. Since at the time of enlarging the accused on bail in the sessions trial, appellant Karam Singh stood surety to the accused named herein above and he failed to cause his presence during the trial, learned trial court initiated proceedings under Section 446 of Cr.PC against him. Vide order dated 30.7.2016 court below cancelled the bail bonds of the accused Somveer alias Somu and initiated proceedings under Section 446 Cr.PC against the appellant.

3. Pursuant to notice issued in the instant proceedings, appellant put in appearance and filed reply to the show cause notice issued under Section 446 Cr.PC. During the pendency of the aforesaid proceedings against the appellant, court below also declared main accused Somveer alias Somu as Proclaimed Offender. Petitioner alongwith police went to Delhi and got accused arrested on 3.9.2022 and at present, main accused is in custody. Since accused failed to cause presence of the accused during the pendency of the trial, court below held him guilty in the proceedings under Section 446 Cr.PC initiated against him and accordingly, imposed penalty to the tune of Rs. 50,000/- and issued warrant of recovery to the Collector returnable for 28.2.2022. In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order imposing penalty or reduce the penalty while exercis-ing power under Section 446 (iii) of Cr.PC.

4. Mr. Maan Singh, learned counsel for the appellant while inviting attention of this Court to order impugned in instant proceedings contends that since it had come to the notice of the court that accused stands arrested with the help and aid of the appellant, it ought not have imposed penalty, rather proceedings initiated against him under Section 446 Cr.PC ought to have been dropped. Mr. Maan Singh, further submits that it is not the case where no steps, if any, were ever taken by the appellant to ascertain the whereabouts of the accused after having received notice from the court, rather he made all sincere efforts to secure his presence and as such, court ought to have taken lenient view while awarding penalty, if any, under Section 446 of Cr.PC

5. Mr. B.C. Verma, learned Additional Advocate General while opposing aforesaid prayer made by the appellant contends that since appellant failed to cause presence of the accused as was undertaken by him while furnishing bonds surety bonds, no illegality can be said to have been committed by the court below while imposing penalty of Rs. 50,000/-.

6. Having heard learned counsel for the parties and perused material available on record, this court though finds no illegality in the impugned order dated 26.12.2022, because in the event of non-appearance of the accused in trial, it was the duty of the surety (appellant) to cause presence of the accused. In case surety of the accused fails to cause his presence, surety amount mentioned in the surety bonds is liable to be recovered from him. Since in the case at hand, appellant furnished surety in the sum of Rs.2,00,000/- at the time of enlargement of accused on bail, and he failed to cause his presence during trial, learned co