IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 3^RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 CRL.A NO. 944 OF 2020 AGAINST THE ORDER/JUDGMENT IN M.C.NO.21/2019 in SC 54/2019 OF ADDITIONAL SESSIONS COURT - II, NORTH PARAVUR, ERNAKULAM APPELLANT/S:

1 RATNAPPAN T. K.,AGED 58 YEARS S/O. NARISIKUTTY, THEKKEKAD HOUSE, WEST MANAKODAM, THURAVOOR, ALAPPUZHA DISTRICT - 688532.

2 ANIRUDHAN C. V., AGED 59 YEARS, PUTHIYANIVARTHIL HOUSE, WEST MANAKODAM, THURAVOOR, ALAPPUZHA DISTRICT - 688532.

BY ADVS.

LIBIN STANLEY SMT.SAIPOOJA RESPONDENT/STATE:

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.

SR.G.P.SMT.S.SEETHA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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 Section 446(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 Section 446(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 Section 446 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 Section 446(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 Section 446 Cr.P.C.. In fact, under Section 446 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 applica