Court holds that the penalty for surety bond forfeiture must consider the surety's efforts and circumstances; excessive penalties can be modified at judicial discretion.

JUDGMENT :

SANDEEP SHARMA, J.

1. Instant Criminal Appeal filed under Section 495 (ii) of Bharatiya Nagarik Suraksha Sanhita, 2023, lays challenge to order dated 04.05.2024, whereby learned Special Judge, Shimla, Himachal Pradesh, after having forfeited the surety bonds furnished by the appellant/surety, proceeded to impose penalty of Rs.2,00,000/- on account of her having failed to cause presence of the accused Vipin Kumar and Ankit Kumar during trial.

2. Precisely, the facts of the case, as emerge from the record are that appellant stood surety for the accused Vipin Kumar and Ankit Kumar in Session Trial No. 69 of 2022, titled State v. Vipin and Anr. Since they failed to come present in the trial despite notices, learned trial Court called upon the petitioner to cause presence of the accused being surety. Since despite service, appellant failed to cause presence of the accused in the trial Court, court below vide order dated 16.05.2023 ordered for forfeiture of surety bonds furnished by the appellant herein and issued non-bailable warrants against her for securing her presence.

3. Subsequently, vide order dated 04.05.2024, learned Court below initiated proceedings under Section 446 of Cr.P.C, against the appellant/accused and imposed penalty to the tune of Rs.2.00 lac. In the aforesaid background, appellant-accused has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order.

4. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the orders dated 16.05.2023 and 04.05.2024, this Court finds that before initiation of proceedings under Section 446 Cr.P.C, learned Court below afforded opportunity of hearing to the accused, but despite opportunity, she failed to appear before the learned trial Court, as a result thereof, Court below had no option but to impose the penalty.

5. Though Mr. Mohar Chand Bhardwaj, learned counsel for the petitioner, vehemently argued that impugned orders dated 16.05.2023 and 04.05.2024, whereby penalty to the tune of Rs.2.00 lac, came to be imposed, is not in accordance with law, but he was unable to dispute that despite her having received notice, appellant failed to cause presence of the accused during trial. He was also unable to dispute that even in the proceedings under Section 446 of Cr.P.C, appellant failed to cause the presence of the accused before the learned trial court.

6. Needless to say, very purpose of taking surety at the time of enlarging the accused on bail is to ensure presence of the accused at the time of the trial. Since appellant-accused had furnished undertaking in the shape of the surety bonds before the court below that in the event of default, if any, on the part of the accused to remain present during trial, she shall be responsible for causing their presence, failing which amount furnished by her as surety shall be forfeited in favour of the State, no illegality can be said to have been committed by the learned court below by ordering forfeiture of surety bonds and imposition of penalty. However, having taken note of the fact that after receipt of notice from the learned trial court, appellant had made sincere efforts to cause presence of the accused in trial, learned trial court while imposing penalty ought to have adopted a lenient approach.

7. Question, which now remains to be considered is, ‘whether this Court can reduce the amount of penalty imposed by learned court below or not?’

8. Before finding answer to the same, S. 446(iii) Cr.P.C, may be taken note of, which reads as under:

“446. Procedu