The power to remit any portion of the penalty under Section 514(5) of the Code of Criminal Procedure, 1898 can be exercised so long as the payment of any portion of the penalty remains unenforced.

( 1 ) PETITIONER Sualal stood surety for the accused Bhawanishankar in Criminal Case no. 1562 of 1951 in the Court of Additional City Magistrate, Indare. The accused remained absent on 3-7-1952. On 5-7-1952 a warrant of arrest was issued against the accused and a notice was issued to Sualal to show cause why the amount of his surety bond be not recovered from him. On 21-7-1952 the surety appeared and applied that he might be given am opportunity to secure the presence of the accused. He was given opportunity thrice but he failed to secure the presence of bhawanishankar. The Court thereupon declared the forfeiture of the surety bond and directed, from the surety, a recovery of the amount of Rs. 400/- for which the bond had been given. Against this order the accused preferred an appeal. This was dismissed on 30th October, 1952. A revision petition filed against that order was dismissed on 23rd July 1953. Subsequently some time in September 1953 the accused was got arrested. It is the case of the surety that he incurred heavy expenditure in securing the arrest of the accused and got him produced before the Hatod Court. The surety applied to the Court of the Additional City Magistrate, Indore, for securing the arrest of the accused in connection with Criminal Case No. 1562 of 1951. The Magistrate thereupon issued a warrant on 11th September, 1953 and the presence of the accused was secured. Thereafter a petition was submitted by the surety under section 514 Clause 5, Cr. P. C. for remission of the amount of surety bond. In the petition it was stated that his moveable property had been attached and sold for enforcement of the amount of the bond in question and that Rs. 65/12/- had been recovered. It was further stated that the accused had been arrested due to efforts put in by the surety. He, therefore claimed remission of the rest of the amount of the bond. This application was rejected by the Magistrate, as according to the learned magistrate's view, the reasons given for the remission were not satisfactory. The petitioner preferred an appeal in the Court of the District Magistrate. The learned magistrate dismissed the appeal on the ground that the matter had been previously considered right up to the High Court and thereafter an order for recovery had been made. A revision petition was thereafter tited in the Court of session which was rejected. The present petition is directed against those orders.

( 2 ) THE view taken by the learned Sessions Judge was that the question with regard to the remission could have been appropriately considered by the Court at an earlier stage when a notice had been issued, to show cause why the amount of the bond should not be recovered. According to his view, after the Court had given a hearing to the surety for showing cause and thereafter directed the recovery of the whole amount, it is not permissible to exercise powers under Sub-section (5)of Section 514. He, further, was of the view that the reasons given by the petitioner for remission were not satisfactory. On these grounds he rejected the petition. The present revision petition is directed against those orders.

( 3 ) TWO questions have been pressed before me by Mr. M. A. Khan learned counsel for the petitioner. He firstly contended that the powers under Section 514, Clause 5 could have been exercised by the Court at any stage until the amount of the bond has not been recovered. Clause 5, according to him, clearly refers to the stage of enforcement. He, therefore, urges that even if his initial attempt at the time of show cause notice had failed, he was entitled to have remission at a subsequent stage provided some new circumstances arise. It was pointed out by him that the new circumstances which had arisen subsequent to the decision in the High Court were that the assets of the surety were sold and the only amount that could be recovered was Rs. 65/12/ -. In the second place, due to the efforts of the surety, the accused had b