Sureties must be given sufficient opportunity to apply for penalty remission under Section 446(3) Cr.P.C., with judicial reasons required for any alterations in penalties.

JUDGMENT

The order under Section 446 Cr.P.C. against the sureties is under challenge, mainly on the reason that no sufficient opportunity was given to the sureties to apply under (3) Cr.P.C.. But going by the order it is clear that, inspite of notice, none of the sureties appeared in answer to the show cause notice. They have not applied under (3) Cr.P.C. for getting remission of any part of penalty to be imposed. The amount forfeited comes to Rs.1,00,000/-, but what is ordered by way of penalty comes to only Rs.80,000/-. It is not stated anywhere in the order under what circumstance and on what reason such a reduction of Rs.20,000/- was given. The legal position was very much settled by this court in Crl.A. No. 95/2021 dated 14/7/2021. Paragraphs 5 and 6 of the judgment are extracted below for reference:

“5. When the bond amount was forfeited, the liability for the entire amount would arise at the same moment. Provisions are made in the Cr.P.C. by way of Section 446 (3)to remit any portion of the penalty to be imposed and to enforce payment in part, but for which reasons should be recorded. It is not within the jurisdiction of the trial court either to reduce or to give up or to alter the

penalty, which would be the legal consequence of the forfeiture of the bail bond except under Section 446 (3)Cr.P.C., for which, reasons must be recorded. Section 440 Cr.P.C. cannot be applied while dealing with forfeiture of bail bond under Cr.P.C.. Section 440 Cr.P.C. basically deals with fixation of bond amount or reduction thereof and it should be done with due regard to the circumstances of the case and it should not be excessive. The exercise of discretion under Section 440 Cr.P.C. for fixing the bond amount is entirely different from that under (3) Cr.P.C.. The former one deals with pre-bail authority and the court can fix bond amount with due regard to the circumstances of the case, such as the gravity of the offence and other attending circumstances and it is the subjective satisfaction of the Magistrate/court for which, it is not at all necessary to record the reasons in writing. But, in the latter case, it would come into play as a legal consequences of violation of bail bond conditions on a post-bail stage and reasons must be recorded for giving remission of portion of penalty. Both these provisions are independent, hence governs different fields. The court cannot go back or revert back to Section 440 Cr.P.C. so as to have a discretion either to reduce the bail bond amount or to refix the same under Cr.P.C.. In fact, under Cr.P.C., the discretionary power vested with the court is so limited to the extent of fixing the quantum of penalty that can be remitted under sub-section (3) by recording reasons for it. The expression “at its discretion” in sub-section(3) was substituted by the words “after recording its reasons for doing so” by Amendment Act 25 of 2005 w.e.f. 23/06/2006 and thereby the legislature had taken away considerably the exercise of discretion by substituting the requirement of sufficient reasons to be recorded for giving remission. The application of sub-section(3) after its amendment by Act 25 of 2005 w.e.f 23/6/2006 was not considered by this court inSahadevan's case (supra). Further, sub-section(3) of Cr.P.C. was not applied so as to remit any portion of penalty. No specific reason was taken into consideration by this Court so as to comply with the requirement under sub-section(3) of Cr.P.C.. Hence, the legal position laid down inSahadevan's case (supra), without discussing the application of sub- section(3) of Cr.P.C. and the benefit conferred for remission of portion of penalty, cannot be said to have the force of binding precedent.

6. It is the basic principle that all beneficial provisions should be followed scrupulously and ample opportunity should be given so as to make the provisions effective. The corollary is that it is the duty of the court to address the beneficial provision by giving sufficien