This appeal has been instituted under Sec. 449 Cr.P.C to impugn the order dated 26.10.2010 of the Additional Sessions Court, Fast Track-II, Thiruvananthapuram in M.C.No.24/2009 registered in S.C.No.1032/2006 on the file of the said court. The appellant herein along with another person stood as surety to the 1st accused in Crime No.279/2003 of Kazhakuttom Police Station registered for offences punishable under Secs. 143, 147, 148, 149, 341, 120(b), 302 of IPC r/w Sec. 27 of the Arms Act. According to the appellant, she had stood as surety only on the request of the parents of the accused, as the accused is a relative of the appellant. The accused appeared before the committal court and thereafter even before the trial court. Later when the charge was about to be framed accused failed to appear and accordingly his bail bond was cancelled and proceedings were initiated against the appellant. After receiving notice from the court, the appellant approached the family members of the accused and on enquiry Crl.A.No.1442 Of 2011 it was found that the accused had gone abroad for a job and the family members of the accused promised the appellant that the accused will surrender before the court on the next posting date. That the parents of the accused further got notice from the appellant and assured that they will make arrangements to show cause before the court below through a counsel and that they obtained appellant's signature in blank paper etc. and later only she came to know about the impugned order when the revenue authority visited the appellant's house for the impugned recovery proceedings. The court below, as per the impugned order, has ordered payment of penalty amount of Rs.25,000/-. It is further ordered in the impugned order that if the above said amount of Rs.25,000/- is not recovered, then the counter petitioners shall undergo simple imprisonment in civil prison for one month each.
2. Heard Sri.Shajin S.Hameed, learned counsel for the appellant and learned Public Prosecutor for the respondent- State.
3. It is contended by the counsel for the appellant that the impugned order which directed imprisonment of the Crl.A.No.1442 Of 2011 appellant in civil prison for one month on failure to make payment of penalty amount of Rs.25,000/- is against the legal position held in the decision Santha v. State of Kerala reported in 2011 (2) KLT 816, wherein this Court has held that the said order of imprisonment can be passed only after initiation of proceedings under Sec. 421 Cr.P.C to ensure recovery of the said amount as if it is of fine and only after exhausting the steps for recovery of the amount of penalty and only after the court is satisfied that penalty is not paid and it cannot be recovered under S.421 of the Code. It is further contended that it has been held by the Apex Court in the case Mohammed Kunju and another v. State of Karnataka reported in AIR 2000 (SC) 6, that it is the discretion of the court to grant remission are to decide the extent of the remission. It is stated that the appellant had executed a bond for Rs.25,000/- and that now the entire bond amount has been imposed as penalty amount. Learned counsel for the appellant further submitted that the appellant is a lady and she stood as surety only because of the fact that the accused is a relative and on the bonafide belief that the accused will abide by all the bail Crl.A.No.1442 Of 2011 conditions etc. It is alleged by the learned counsel for the appellant that the appellant has no sufficient means of income to pay such a high penalty amount of Rs.25,000/-.
4. This Court had admitted the Criminal Appeal on 22.8.2011 and had further ordered stay of the impugned recovery proceedings on condition that the appellant shall deposit Rs.12,500/- before the trial court within one month and directed the appellant to produce the receipt showing the remittance as directed above. It is stated that the appellant had deposited the amount of Rs.12,500/- before the Additional Sessions Court, Fast Track-II, Thiruvananthapuram on 20.9.2011 and a photocopy of the said receipt has also been made available. The impugned order to the extent it directs civil imprisonment on failure to pay the above said amount of Rs.25,000/- appears prima facie to be against the principles laid down by this Court in Santha v. State of Kerala reported in 2011 (2) KLT 816. Sec. 446(3) of the Cr.P.C empowers the court to remit any portion of the penalty mentioned and enforce payment in part only. Considering the fact that the appellant is a lady who has no sufficient means to pay the Crl.A.No.1442 Of 2011 amount of Rs.25,000/-, it is ordered in the interest of justice that the penalty amount be remitted is reduced to Rs.12,500/- instead of the penalty amount of Rs.25,000/- ordered by the court below. It is stated by the appellant that the appellant has already deposited an amount of Rs.12,500/- before the court below on 20.9.2011 pursuant to the direction issued by this Court in the stay petition in this appeal. The said amount of Rs.12,500/- already deposited before the court below shall be appropriated towards the penalty amount now reduced by this Court in this appeal as Rs.12,500/-.
Criminal appeal stands allowed as indicated above.
bkn/-
ALEXANDER THOMAS, Judge.