1. Petitioner Sualal stood surety for the accused Bhawanishankar in Criminal Case No. 1562 of 1951 in the Court of Additional City Magistrate, Indare. The accused remained absent on 3-7-1952. On 5-7-1952 a warrant of arrest was issued against the accused and a notice was issued to Sualal to show cause why the amount of his surety bond be not recovered from him. On 21-7-1952 the surety appeared and applied that he might be given am opportunity to secure the presence of the accused. He was given opportunity thrice but he failed to secure the presence of Bhawanishankar. The Court thereupon declared the forfeiture of the surety bond and directed, from the surety, a recovery of the amount of Rs. 400/- for which the bond had been given. Against this order the accused preferred an appeal. This was dismissed on 30th October, 1952.
A revision petition filed against that order was dismissed on 23rd July 1953. Subsequently sometime in September 1953 the accused was got arrested. It is the case of the surety that he incurred heavy expenditure in securing the arrest of the accused and got him produced before the Hatod Court. The surety applied to the Court of the Additional City Magistrate, Indore, for securing the arrest of the accused in connection with Criminal Case No. 1562 of 1951. The Magistrate thereupon issued a warrant on 11th September, 1953 and the presence of the accused was secured. Thereafter a petition was submitted by the surety under Section 514 Clause 5, Cr. P. C. for remission of the amount of surety bond. In the petition it was stated that his moveable property had been attached and sold for enforcement of the amount of the bond in question and that Rs. 65/12/- had been recovered.
It was further stated that the accused had been arrested due to efforts put in by the surety. He, therefore claimed remission of the rest of the amount of the bond. This application was rejected by the Magistrate, as according to the learned Magistrate's view, the reasons given for the remission were not satisfactory. The petitioner preferred an appeal in the Court of the District Magistrate. The learned Magistrate dismissed the appeal on the ground that the matter had been previously considered right up to the High Court and thereafter an order for recovery had been made. A revision petition was thereafter tited in the Court of Session which was rejected. The present petition is directed against those orders.
2. The view taken by the learned Sessions Judge was that the question with regard to the remission could have been appropriately considered by the Court at an earlier stage when a notice had been issued, to show cause why the amount of the bond should not be recovered. According to his view, after the Court had given a hearing to the surety for showing cause and thereafter directed the recovery of the whole amount, it is not permissible to exercise powers under Sub-section (5) of Section 514. He, further, was of the view that the reasons given by the petitioner for remission were not satisfactory. On these grounds he rejected the petition. The present revision petition is directed against those orders.
3. Two questions have been pressed before me by Mr. M. A. Khan learned counsel for the petitioner. He firstly contended that the powers under Section 514, Clause 5 could have been exercised by the Court at any stage until the amount of the bond has not been recovered. Clause 5, according to him, clearly refers to the stage of enforcement. He, therefore, urges that even if his initial attempt at the time of show cause notice had failed, he was entitled to have remission at a subsequent stage provided some new circumstances arise.
It was pointed out by him that the new circumstances which had arisen subsequent to the decision in the High Court were that the assets of the surety were sold and the only amount that could be recovered was Rs. 65/12/-. In the second place, due to the efforts of the surety, the accused had been arrested. He secondly contended that even if there be some technical difficulty with regard to the powers under Section 514, Clause 5 at this stage, it is competent te the High Court to exercise its powers under Section 561-A to remit the remaining portion of the amountof the bond which so far has not been recovered in spite of the attachment of the property.
The learned Dy. Government Advocate, whoappears for the other side, tried, to meet both these contentions. In respect of the first, the learned counsel relied upon Balraj S. Kapoor v. The State of Bombay, AIR 1954 Bom 365 (A), wherein Dixit J. preferred to hold that the Court can insist upon the payment of the entire amount of penalty or may make an order remitting a portion of the penalty as soon as a bond is forfeited and the Court is called upon to apply its mind to the matter. With regard to second submission of the learned counsel for the petitioner the learned Dy. Government Advocate stated that in this particular case there is no proper justification for the exercise of the proper powers because the accused was arrested long after the date when the forfeiture of the bond occurred. As regards the first question, we will have to examine the provisions of Section 514 in this respect Section 514 is as follows :
''(1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class,
or, when the bond is for appearance before a Court, to the satisfaction of such Court,that such 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.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the moveable property belonging to such person or his estate if he be dead.
(3) Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorise the attachment and sale of any moveable property belonging to such person without such limits, when endorsed by the District Magistrate or Chief Presidency Magistrate within the local limits of whose jurisdiction such property is found.
(4) If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the Court which issued the warrant, to imprisonment in the civil jail for a term which may extend to six months.
(5) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.
4. It appears, by reading the provisions as they stand with respect to the power of the Court ordering recovery of the amount of the bond and to remit any portion of the penalty, that the power to remit any portion of the penalty in exercise of its power under Clause 5 could be exercised, so long as the payment of any portion of the penalty remains unenforced. This power is conferred by an altogether independent clause. The same is not included in the first or second clause. The reason is not far to seek. The circumstances inducing the Court to remit a portion of the penalty may occur priorto the issue of show cause notice; they may occureven subsequently after it passes the orders for recovery. But if the reasons for remission are good, there is no reason why the power should not be exercised even at a subsequent stage.
Considerations of convenience may require that both these questions may, if possible, be considered at the earlier stage and I feel that if the circumstances justifying the remission of the portion of the penalty do occur before the Court proceeds to consider the answer of the surety to show cause notice, then all those circumstances ought to be pressed at that stage and if not pressed, the same cannot subsequently be considered. But if such circumstances occur subsequent to the order of recovery, then so long as the amount is not totally recovered there is no reason why power under Clause 5 should not be exercised even later on and even after the initial order for the recovery of the whole amount is made. The learned Judge of the Bombay High Court, in the aforesaid case, expressed himself in the following terms when dealing with this matter:
'But as I read Section 514(1) and Section 514(5) together it seems to me that the better view is that the Court is called upon to require the surety to pay the amount of the penalty or to remit a portion of the penalty as soon as the bond is forfeited. It is at that stage that the Court is called upon to consider the question as to whether the entire amount of the penalty should be ordered to be paid or only a portion of the amount should be ordered to be paid. This interpretation is suggested by the language of Sub-section (5) which, 'inter alia', provides that the Court may remit a portion and enforce payment in part only and the mode of enforcement of the penalty is to be found in Sub-sections (2), (3) and (4) of Section 514.
The question whether the discretion contemplated by Sub-section (5) is to be exercised at a subsequent stage or at the stage when the Court calls upon the surety to pay the amount of the penalty, is, I think, not free from difficulty. It is, I think possible to take the view that the Court may, in its discretion, remit a portion of the penalty and enforce payment in part only even at a subsequent stage. But I would prefer to say that the Court caninsist upon the payment of the entire amount of the penalty or may make an order remitting a portion of penalty as soon as the bond is forfeited and the Court is called upon to apply its mind to the matter.'
It seems from the observations that the learned Judge himself did see that it was possible to take the view other than the one he preferred. In that case the learned Judge overcame the difficulty by resorting to powers under Section 561-A, which according to him, was sufficiently wide to justify remission even at a later stage. I agree with this last mentioned view that this Court has power under Section 561-A.
5. Coming to the merits of the matter it is no doubt true that the accused was arrested after a considerable time but it appears that up to July 1953, the petitioner was taking proceeding in respect of the show cause notice and in September 1953 the accused was got arrested. There is an affidavit filed by the petitioner stating that his moveable assets in his house had all been auctioned which fetched only Rs. 65/12/- and that he has secured the arrestof the accused. It is further stated in the affidavit that the Criminal Case No. 1562 of 1951 was compounded after the accused was got arrested and brought before the Court and the accused was acquitted. In view of the statement contained in the affidavit, I think, there was a proper justification for remission of the amount of the bond. It is, therefore, ordered that out of Rs. 400/-, only Rs. 100/-may be recovered from the petitioner. The rest of the amount is remitted.