The court has discretion under Section 446 Cr.P.C to remit a portion of the penalty imposed on a surety, considering the financial situation of the surety and efforts to secure the accused's attendance.

By way of instant criminal appeal, challenge has been laid to order dated 16.3.2024, passed by learned Special Judge, Shimla, District Shimla, Himachal Pradesh, in Cr.MP No. 900 of 2024 titled as State of H.P. Versus Mohammad Danish , 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 at the time of enlarging the accused on bail in the trial, appellant stood surety to the accused named herein above and since appellant failed to cause presence of the accused during the pend- ency of the trial, court below initiated proceedings under Section 446 Cr.PC against her. Learned court below imposed penalty to the tune of Rs. 50,000/- and issued warrant of recovery against her. 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 exercising power under Section 446 of Cr.PC.

3. Having heard learned counsel for the parties and perused material available on record, this court though finds no illegality in the impugned order dated 16.3.2024, 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 her. Since in the case at hand, appellant furnished surety in the sum of Rs.50,000/- at the time of enlargement of accused on bail and she failed to cause his presence during trial, learned court below had no option but to initiate proceedings under Section 446 Cr.PC against the surety /appellant.

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

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

“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 where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, 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. 1 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