Rammehar v. State Of Haryana

  
  



 


   

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" "440. Amount of bond and reduction thereof.

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(1)The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2)The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced."

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" "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 where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, 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 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) & (5) xxxxxxxxxxxxx"

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" "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 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 prebail 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 consequence 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 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."

In view of the afore-said legal position, the reliance of learned counsel for the petitioner on Section 440 Cr.P.C is absolutely misplaced. 4

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Once the petitioner had furnished the bonds for an amount of ₹5 lakhs, undertaking the appearance of the accused - Kapoor Singh on each and every date of hearing, he cannot be allowed to turn around and say that bond amount was excessive.

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