B. Venkataswami, J.
1. This petition is by a surety, who has been called upon to pay a sum of Rs. 500/- on forfeiture of the bond executed by him, for a sum of Rupees 1000/-. It would appear that the accused owing to indisposition had endeavoured to secure adjournments in the case at various stages. Ultimately when a non-bailable warrant was issued on 25.3.1971 the accused approached this Court and secured an order for recalling the said warrant. Meanwhile proceedings were instituted against the petitioner for the enforcement of the bond executed by him as a surety. A notice was caused to be served on the petitioner and on 17.8.1971 the surety bond was forfeited on account of the absence of the petitioner. Further proceedings by way of attachment of movable properties were taken for the recovery of the sum of Rs. 1000/- which was the entire sum mentioned in the bond. On 24.9.1971 the petitioner appeared in court and filed an application through a counsel practically requesting that he might be leniently dealt with in view of his age and his impecunious circumstances. Indeed a submission was made on his behalf that he would be willing to pay only a part of the amount under the bond if so ordered. The learned Magistrate reduced the sum payable to Rs. 750/. In appeal the learned Sessions Judge at Shimoga, reduced the amount further to Rs. 500/-. The proceedings against the petitioner were instituted in Crl. Mis. Case No. 51 of 1971 by the Special First Class Magistrate Sagar.
2. Sri P. Vishwanatha Shetty the learned Counsel appearing on behalf of the petitioner submits that the proceedings for forfeiture of the bond and recovery of the amount were clearly vitiated inasmuch as the provisions of Section 514 of Criminal Procedure Code had not been complied with. Alternatively, he submitted that the determination of the amount payable is in the nature of a Penalty, and. therefore clearly called for application of the mind by the Court in regard to it. His further submission is that both the courts below have not assigned any reasons as to why the sum of Rs. 500/-should be levied as a penalty, beyond saying that the petitioner is a retired and old Government servant and is faced with some difficulty as to the recovery of the amount due to him from his properties.
3. It seems to me that the first contention of Sri Shetty cannot be accepted in the face of the statement made on his behalf before the learned Magistrate to the effect that he would be prepared to pay a part of the amount if so ordered. From this submission it is to be inferred that the petitioner had no grievance whatsoever with regard to the procedure adopted by the trial Court anterior to 24.9.1971. I am therefore, of the view that the first contention has to be rejected.
4. On the second submission, I am in agreement with the submission of the learned Counsel. Section 514 of Cr. P. Code enjoins the levy of penalty and does not in express terms lay down that the entire sum stipulated under the bond is to be paid automatically once there is a breach of the terms thereof. The word 'penalty' is significant. The determination of such penalty by a Court of law must be on the basis of the application of the mind and the exercise of judicial discretion. In other words the quantum of penalty to be levied must bear some correlation to the circumstances present in a case, such as long continued absence of the accused the nature of the offence with which he is charged and the likelihood of the State being put to further exertion and expense in apprehending the accused. The poverty or the ability of the surety to pay the sum, may in certain circumstances be a relevant fact. It seems to me from the order in revision that neither of the Courts below has approached this question from the point of view of the circumstances enumerated above. But, for this reason, I cannot accede to the request of the petitioner that the entire levy should be quashed. It is clear from the circumstances present in the case that the accused was really disabled from attending the Court on several dates of hearing as evidenced by the Medical certificates and also the order made by this Court in a revision petition preferred by the accused. In this state of affairs even if the surety had been inclined to produce the accused before Court he would, perhaps have had to contend with the indisposition and illness of the accused. In normal circumstances a ground of that nature would afford sufficient justification for a surety to absolve himself from the responsibility enjoined under a surety bond. Taking all these circumstances into consideration, I am of the view that the interest of justice would be well served if penalty be fixed at Rs. 100/-. The impugned order, therefore clearly calls for modification in regard to this aspect.
5. In the result this petition is partly allowed. The order stands modified in that the petitioner shall be liable to pay only a sum of Rs. 100/- under the bond forfeited by the Court. If the amount ordered by the Court below had already been recovered the same in excess of Rs. 100/- is liable to be refunded to the petitioner. It is ordered accordingly.