Ashok vs State of Haryana

Bakhshish Kaur, J.—The petitioners who are as many as four in number have preferred this appeal against the impugned orders dated 13.6.1997 and 9.7.1997, whereby they were ordered to undergo civil imprisonment as they had failed to make payment of Rs. 5000/- imposed upon them as penalty in the proceedings u/s 446 of the Code of Criminal Procedure.

The petitioners who were facing trial for the offences under Sections 148 and 302 read with Section 149 of the Indian Penal Code, on the closure of the prosecution evidence were found guilty by the learned trial Court. The case was postponed to next date for hearing on the question of sentence. On the appointed day, they failed to appear, therefore, the learned trial Court had forfeited the bail bonds and surety bonds and issued notices u/s 445 of the Code of Criminal Procedure. Ashok, Raghbir and Par-tap surrendered before the Court on 13.6.1997, while appellant Ramesh had surrendered on 15.6.1997.

The relevant portion of the orders passed by the learned trial Court for imposing penalty on them u/s 446 of the Code of Criminal Procedure reads as under :-

"He has surrendered today and, therefore, notice u/s 446 Cr. P.C. has been given to him. On questioning he stated that he absconded under the fear of sentence but it is no ground to justify his absence.

I accordingly impose upon him a penalty of Rs. 5000/- and since he has failed to pay the penalty, hence he is liable to imprisonment in civil jail for a term of four months."

Before I deal with the main case pertaining to the legality of the impugned orders, I would also like to deal with the application filed u/s 5 of the Limitation Act because there is a delay of 892 day in filing the appeal.

The reasoning given by the petitioners for not filing the appeal within the stipulated period is that in the main case they were convicted on 13.6.1997 and on the same day the impugned orders were passed and they were under the impression that the sentence awarded to them u/s 446 Cr. P.C. is to run concurrently. They had preferred an appeal against their conviction andthe same is lying admitted in this Court as Crl. Appeal No. 541-DB of 1997 and recovery of fine was also stayed.

Though the delay of 892 days is not negligible delay but the fact remains that the petitioners were convicted and sentenced to undergo life imprisonment u/s 302 of the Indian Penal Code on 13.6.19097 and on the same day impugned orders u/s 446 of the Code of Criminal Procedure were passed. There is likelihood that the petitioners might have remained under the mistaken belief that since they have been awarded life imprisonment, the other sentence of four months awarded to them u/s 446 Cr. P.C. was to run concurrently.

Taking into consideration all these facts and the circumstances of the case, ends of" justice demand that the delay in filing this appeal should be condoned. Application u/s 5 of the Limitation Act i.e. Crl. Misc. 2991 of 2000 is, therefore, accepted and the delay in filing this appeal is hereby condoned.

Coming to the merits of the case from a bare perusal of the impugned orders it is apparent that the learned trial Court had not afforded an opportunity to the petitioners to show sufficient cause for not appearing in the Court, though they had explained that out of fear of sentence they did not appear on the date fixed, still it was imperative on the Court to afford an opportunity to the petitioners to pay the amount of penalty of Rs. 5000/- imposed upon them u/s 446 of the Code of Criminal Procedure. Instead of affording an opportunity the Court straightway passed the impugned order referred to above.

In case they had failed to pay the amount, the same could be recovered from them as envisaged u/s 421 of the Code of Criminal Procedure, but the Court could not pass both the orders simultaneously, firstly imposing a penalty of Rs. 5000/- and with the same stroke of pen coming to the conclusion that they had failed to pay penalty, therefore, they are liable to suffer imprisonment of civil jail of a term of 4 months.

Section 446(2) of the Code specifically provides that 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. This Section creates obligation m relation to the amount of penalty imposed under the Section to the effect that the penalty may be recovered as if it were a fine. Therefore, Section 421 of the Code is obviously attracted to the recovery of penalty u/s 446 of the Code. The trial Court instead of following the procedure envisaged u/s 421 of the Code had ordered the petitioners to suffer imprisonment of Civil jail for a term of four months, as above. Thus the impugned order passed by the trial Court to the extent of requiring the petitioners to undergo imprisonment of civil jail for a specified period, cannot be sustained. However, as the petitioners had failed to appear before the trial Court and jumped the bail bonds, therefore, the order imposing penalty of Rs. 5000/-is found to be legal but considering the circumstances and the facts of the case, the amount of Rs. 5000/- is reduced to Rs. 3000/-.

With this modification in the impugned order, this Appeal is disposed accordingly.

Appeal portly allowed.