The power to remit the penalty under section 514(5) of the Code can only be exercised at the time the court passes a final order forfeiting the surety bonds and for realisation of the amount thereof as penalty. The inherent power of the High Court under section 561A of the Code cannot be used to modify a final order.

This is a revision under Section 430 of the Code of Criminal procedure-hereinafter referred to as the Code. Along with it, an application under Section 561 A of the Code has also been filed. Since both, the revision as also the application, are directed against the same order and the prayer made in them is similar, they are being disposed of by this common judgment.

2. The material facts giving rise to this revision are that one Gokul Chamar was being prosecuted in the court of the learned Sub-Divisional Magistrate, Soraon, district Allahabad, for an offence punishable under Section 60 of the Excise Act. During the pendency of that case, bail was granted to Gokul and the applicants stood sureties and filed surety-bonds for his appearance in court on various dates fixed for its hearing. On the 16th September, 1968, the accused failed to turn up in court and consequently the learned Magistrate passed an order cancelling his bail bonds and issuing bailable warrants for his arrest and production in court. Notice was ordered to issue to the sureties either to show cause as to why the amounts of the surety-bonds filed by them be not realised from them or to produce the accused on the 4th October, 1968. The applicants failed to show satisfactory cause or to produce the accused before the learned Magistrate. Ultimately by any order dated 17th January 1969, the learned Magistrate ordered realisation of the amount of the surety-bonds executed by the applicants from them. Against the order dated 17th January 1969, the applicants filed an appeal before the learned Sessions Judge, Allahabad. It was heard by the learned Second Additional District and Sessions Judge, who, by his order dated 30th August, 1969, dismissed the appeal. No revision appears to have been filed in this Court against the order of the learned Second Additional District and Sessions Judge. The orders passed by the learned Magistrate dated 17th January, 1969 and that of the learned Second Additional District and Sessions Judge dated 30th August, 1969 consequently became final.

3. Subsequently the applicants filed a petition on the 6th September, 2969 in the court of the learned Sub-Divisional Magistrate, Soraon, praying that the amounts of the surety-bonds be remitted in full. This application was made on the allegations that Gokul was in jail in the district of Pratapgarh during the material time and consequently the applicants, who stood sureties for his appearance, were prevented by cause beyond their control from complying with the bonds filed by them. The learned Magistrate passed the following order :

"The Sessions court has ordered the realisation of the pledged amount. The sureties are given time till 30-1-1970 to pay it."

Against this order, the applicants went up in appeal before the leaned Sessions Judge, Allahabad. The learned Sessions Judge summarily rejected the appeal on the ground that in view of the order dated 30th August, 1969 passed earlier in the appeal which had been filed against the order of the learned Magistrate dated 12th January, 1969, the appeal was not maintainable. Against that order, the applicants have filed this revision.

4. Learned counsel for the applicants has contended that the view taken by the courts below was incorrect and legally unsustainable. He contended that under section 514(5) of the Code, it was open to the court to pass an order for the remission of any portion of the penalty mentioned in the earlier sub-section of section 514 any time before payment had actually been made. In support of this contention learned counsel placed reliance on the decision by Dixit, J., in Balraj S. Kapoor v. The State of Bombay, AIR 1954 Bom 365 = (1954 Cri LJ 1044). The facts of that case were that one Shivraj S. Kapoor was granted bail in the case in which he was being prosecuted. The applicant before the Bombay High Court executed a surety-bond for his appearance in court on various dates fixed. The accused jumped bail and did not app