IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 CRL.A.No. 2503 of 2010() ------------------------ AGAINST THE ORDER DATED 21/04/2008 IN M.C 3/2008 IN SC.653/2006 of 4th Additional Sessions Court (Adhoc -II) Thodupuzha .................... APPELLANT/ COUNTER PETITIONER NO.3 --------------------------------------------- SANTHA, W/O.NARAYANAN, NALLOMKALLIL HOUSE, PUTHUPARIYARAM KARA,MANAKKADU VILLAGE, THODUPUZHA TALUK BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT/COMPLAINANT: -------------------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON 01/04/2011 DELIVERED THE FOLLOWING: K.HEMA, J. C.R. --------------------------------------- Crl. Appeal No. 2503 of 2010 ---------------------------------------- Dated this 1st day of April, 2011. JUDGMENT Can a person be directed to undergo imprisonment in civil jail, under Section 446 of the Code, before exhausting steps to recover the penalty? Mainly, this question arises in this appeal, filed under Section 449 of the Code. 2. Appellant was a surety for the accused and he executed a bond for appearance of accused under Section 441 of the Code, with the bond amount Rs.25,000/- before the Additional Sessions Court. The accused did not appear in court, and hence, notice was issued to appellant and the other surety. Despite giving notice, appellant did not appear in court, and hence she was directed to pay Rs.25,000/- as penalty. It was also ordered by lower court that if such amount is not paid, she will undergo civil imprisonment for six months. The said order is under challenge in this appeal, under Section 449 of the Code. CRL.A. No.2503/10] 2 3. Learned counsel for appellant, Sri. Manu Tom submitted that petitioner is an illiterate woman, who happened to stand as surety for the accused and when she got notice from the court below, she approached the accused and his counsel. They assured her that accused would appear before the court. Believing these words, she did not appear in court and hence, the impugned order was passed. The accused, however, appeared in court after passing of the impugned order and he was acquitted also. 4. Learned counsel for appellant also submitted that the other surety who also executed the same bond along with appellant challenged the same order before this court in Criminal Appeal No.2585 of 2008 and another bench of this court took this took a lenient view in the said appeal and penalty was reduced to Rs.3000/-, as per order dated 27.11.2008. Therefore, appellant may also be treated equally and penalty be reduced, it is submitted. 5.On hearing both sides and on considering the various facts and circumstances of this case, and also on going through the order passed by another bench of this court in Crl. Appeal No.2585 of 2008, I find no reason to reject the request to CRL.A. No.2503/10] 3 reduce penalty. Both sureties are similarly placed and hence, this is a fit case where a portion of the penalty can be remitted and payment of only an amount of Rs. 3000/- be enforced against appellant under Section 446(3) of the Code. 6. Learned counsel for appellant further submitted that imprisonment of 6 months ordered by trial court also requires intervention and it may be reduced proportionately to one month. On a reading of Section 446 of the Code, I find that such request cannot be accepted. Section 446 of the Code (excluding portion which are not quite relevant to dispose of this appeal) is extracted hereunder: “S. 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 xxxx, 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 CRL.A. No.2503/10] 4 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: 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 six months. (3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only. (4) xxxx (5)xxxx” (emphasis supplied). 7. The proviso to Sub section (2) of Section 446 of the Code lays down under what circumstances the court can pass an order to imprisonment in civil jail. As per Section 446(2) of the Code, if the person who forfeits the bond, does no show sufficient cause and pay the penalty, the court has to proceed to recover the penalty, as if such penalty were a fine imposed by it, under the Code. Section 421 deals with such procedure for recovery of fine and hence, the same procedure is to be followed for recovery of penalty falling under Section 446 also. CRL.A. No.2503/10] 5 8. Section 446(3) of the Code provides that a portion of the penalty may be remitted by the court, after recording reasons for doing so and payment of penalty in part alone may be enforced. So, where a bond is forfeited, it is not necessary that in all cases, the court proceeds to recover the whole amount shown in the bond as penalty. By virtue of Section 446 (3) of the Code, the court may in its discretion, remit a portion of such amount and recovery of the balance alone may be enforced. 9. The proviso to Section 446(2) of the Code, however, lays down that the surety shall be liable to undergo imprisonment in civil jail, if penalty is not paid and it cannot be recovered in the manner referred to in the provision, ie., under Section 421 of the code. Therefore, if the court finds that the bond is forfeited and penalty is to be paid, it is only reasonable that the court posts the case to a specific date for payment of penalty. If, on such day or on any other day to which the court adjourns the case for payment of penalty, there is failure to pay penalty, then alone, the court need proceed to recover the penalty. CRL.A. No.2503/10] 6 10. If, on initiation of proceedings under Section 421 of the Code and on exhausting all the steps for recovery of penalty, court finds that penalty cannot be recovered in whole or in part, under Section 421 of the Code, then alone the court can pass an order to imprisonment in civil prison. The court which can pass the order to imprisonment under Section 446(2) of the Code is “the court ordering recovery of the penalty”. The court ordering recovery of penalty is the court which enforces payment of penalty, by initiating proceedings under Section 421 to recover the same. Only such court can pass an order to imprisonment under Section 446(2) of the Code. 11. Therefore, it is an added reason to say that an order for imprisonment under Section 446(2) can be passed, only after initiation of proceedings under Section 421 of the Code and exhausting the steps to recover penalty. It is also pertinent to note that the maximum period of imprisonment which the court can order under Section 446(2) of the Code is six months. So, depending upon the amount which remains to be recovered or could not be recovered, period of imprisonment may also vary. CRL.A. No.2503/10] 7 12. It is needless to say that the period of imprisonment ordered by court must be reasonable and proportionate to the amount which remains unpaid or not recovered. The appropriate period of imprisonment can be determined only after completing all steps for recovery of penalty under Section 421 of the Code and if any amount still remains to be recovered. Without confirming what amount stands unpaid or not recovered, the court will not be in a position to determine what would be the appropriate period of imprisonment. The court shall not fix the period of imprisonment arbitrarily. 13. There may be cases in which, a part of the penalty may be paid or recovered. In such cases, a reasonable period of imprisonment to be fixed must be proportionate to the amount which is yet to be recovered. Therefore, unless and until all steps to recover penalty under Section 421 of the Code are exhausted, the court shall not pass an order under Section 446(2) of the Code to imprisonment in civil. An order to imprisonment in civil jail under Section 446(2) of the Code can be passed, only after the court is satisfied that penalty is not paid and it cannot be recovered under Section 421 of the Code. CRL.A. No.2503/10] 8 14. If any order is passed by the court to imprisonment in civil jail, under the proviso to Section 446(2) of the Code, prior to taking steps and exhausting all steps under Section 421 of the Code to recover the penalty, such order will be premature. It will not be legal also. Therefore, the order passed against appellant in this case, to imprisonment in civil jail for six months is not only premature but, it is illegal also. Without giving an opportunity to appellant to pay penalty and without proceeding to recover the penalty as per law, the court ought not to have passed order for imprisonment to the maximum period of 6 months. Hence, order of imprisonment passed against appellant is unsustainable. 15. Hence, in supersession of the impugned order, the following order is passed: 1) The portion of penalty is remitted under Section 446(2) of the Code and, payment of only Rs. 3000/- alone shall be enforced against appellant. 2) Penalty of Rs.3000/- shall be paid by appellant before the court below, within one month from today. 3) If appellant fails to pay the penalty as ordered CRL.A. No.2503/10] 9 above, the lower court shall initiate proceedings to recover penalty, in accordance with law. 4) The order passed by the court below, directing appellant to imprisonment in civil jail is set aside. This appeal is allowed. Sd/- K. HEMA, JUDGE Krs.