Valsan and Visni v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** **CRL.A NO. 95 OF 2021** **AGAINST THE ORDER IN M.C.NO.07/2018 IN SC 850/2017 OF ADDITIONAL SESSIONS COURT - II, NORTH PARAVUR, ERNAKULAM** ## **APPELLANTS/COUNTER PETITIONERS:** **1 VALSAN AGED 54 YEARS S/O.VASUDEVAN, PALAPPURATH HOUSE, KODUVAZHANGA KARAYIL, ALANGADU, PARAVUR, ERNAKULAM DISTRICT. 2 VISNI, AGED 38 YEARS D/O.VISWAN, KUNNUKATTIL HOUSE, KIZHAKKUMPURAM, CHENDAMANGALAM, PARAVUR, ERNAKULAM DISTRICT.** ## **BY ADV. K.NIRMALAN** ## **RESPONDENTS/COMPLAIANT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **BY ADV.SRI.E.C.BINEESH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 95 OF 2021 2 **CR** ## **JUDGMENT** The appellants, the sureties, came up against the order under Section 446 Cr.P.C. imposing penalty @ RS.50,000/- each by forfeiting bond amount of Rs.50,000/- each on the ground of violation of bail bond conditions by the accused involved in an alleged offence under Section 20 (b) (ii)(B) of NDPS Act. 2. A mere perusal of the order would show that a show cause notice under Section 446 Cr.P.C. was issued calling upon the party either to pay the penalty or to show cause, to which no explanation was given. 3. The decision rendered by this Court in **Sahadevan and Another v. State of Kerala** ( **2017 KHC** **981)** was brought to the notice of this Court in support of the argument that the court shall not impose penalty “mechanically” and relied on CRL.A NO. 95 OF 2021 **==> picture [8 x 9] intentionally omitted <==** paragraph 4 of the judgment, which is extracted below for reference : “It is to be borne in mind that S.440 Cr.P.C. says that the amount of every bond executed under Chapter XXXIII shall be fixed with due regard to the circumstances of the case and shall not be excessive. S.441 Cr.P.C. Deals with bond of accused and sureties. On a reading of S.446 Cr.P.C., it is clear that forfeiture of a bond is automatic in case the accused and the sureties commit a breach of the conditions. No act or intervention of the Court is required for forfeiting a bond. It has been held in a catena of decisions that on forfeiture of the bond, the Court shall not impose penalty mechanically. The facts and circumstances leading to forfeiture of the bond should be considered. It is also submitted by the learned counsel for the appellants that despite making a request before the Court below for some more time to produce the accused, the Court below took stringent action against the appellants. It is also submitted that the entire bond amount has been forfeited without application of mind. All these aspects are legally unsupportable and therefore, this Court has no other option, but to interfere with the order.” (emphasis supplied) 4. It was submitted that based on the abovesaid discussion, this Court allowed the appeal confirming imposition of penalty on the appellants 4 CRL.A NO. 95 OF 2021 and reduced the penalty to Rs.5,000/- each on them, hence pressed for an order in tune with the said judgment. On going through the said judgment, it is clear that Section 446 Cr.P.C. was considered only for the purpose of holding that forfeiture of bond is automatic in the case of accused and the sureties commit breach of the conditions. 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 CRL.A NO. 95 OF 2021 5 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, CRL.A NO. 95 OF 2021 6 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 7 CRL.A NO. 95 OF 2021 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. 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 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, CRL.A NO. 95 OF 2021 8 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.. The benefit or its entitlement under that provision was not either taken up or addressed. Hence, the order is bad in law and is liable to be set aside. I do so. 7. The matter is remanded back to the trial court for proper disposal by affording an opportunity to the appellant to apply under Section 446(3) Cr.P.C. The parties shall appear before the trial court on 25.08.2021 and the trial court shall dispose of the matter within a time schedule of two months from the date of appearance of the parties. The criminal appeal is allowed accordingly. Sd/- ## **P.SOMARAJAN JUDGE** SV CRL.A NO. 95 OF 2021 9 ## **APPENDIX** ## **APPELLANTS’ ANNEXURE** **ANNEXURE A1 THE TRUE COPY OF THE DEMAND NOTICE DATED 13.11.2019.** **ANNEXURE A1(A) THE TRUE COPY OF THE DEMAND NOTICE DATED 6.12.2019.** ## **RESPONDENT’S ANNEXURE: NIL** ## **//TRUE COPY//** **Sd/-** **PA TO JUDGE**