Unnikrishnan S/o. Raghavan vs State Of Kerala

P.Somarajan, J

After forfeiting the bail bond of Rs.25,000/-, the learned Sessions Judge imposed a penalty of Rs.10,000/- each on the counter petitioners/appellants

herein by remitting the balance amount under Section 446(3) Cr.P.C., for which no reason is seen recorded. The legal position is very much settled by

this court in Crl.Appeal No.95/2021 dated 14/07/2021. 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 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 in Sahadevan's case

(supra). Further, sub-section(3) of Section 446 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 Section 446 Cr.P.C.. Hence, the legal position laid down in Sahadevan's case (supra), without

discussing the application of sub-section(3) of Section 446 Cr.P.C. and the benefit conferred for remission of portion of penalty, cannot be said to have the force of

binding precedent.

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 sufficient opportunity to the party concerned to exhaust the

benefit under the provision. If it is not addressed, the order will stand bad in law. In the instant case, though show cause notice was issued, no sufficient

opportunity was given to the appellant to exhaust the benefit under Section 446(3) Cr.P.C.. The order is totally silent about the application of Section

446(3) Cr.P.C..â€​

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Hence, the order under challenge is hereby set aside, by allowing this appeal. The matter is remanded back to the trial court for fresh disposal. The

trial court shall give an opportunity to the petitioners to apply under Section 446(3) Cr.P.C. for getting remission of part of penalty to be imposed. The

parties shall appear before the trial court on 02/09/2021.

The Crl.Appeal is allowed accordingly.