The Himachal Pradesh High Court has clarified that courts must exercise discretion under Section 446 CrPC to reduce penalties imposed on sureties who face financial ruin, particularly when they have made sincere efforts to secure the accused’s appearance. This ruling reinforces the principle that penal recovery must be proportionate and humane, not automatic.
Background & Facts
The Dispute
The appellant, Hitesh Kumar, stood as surety for an accused in a sessions trial. He executed a bond for Rs. 1,00,000 to secure the accused’s bail. During the pendency of the trial, the accused failed to appear in court. The trial court, under Section 446 CrPC, initiated proceedings against the appellant as surety and imposed a penalty of Rs. 1,00,000 - the full amount of the bond - and issued a warrant of recovery returnable by 16.08.2023.
Key Facts
- The appellant furnished a surety bond of Rs. 1,00,000 on the date of the accused’s release on bail.
- The accused did not appear in court on multiple dates during the trial.
- The trial court, without recording any inquiry into the appellant’s efforts or financial capacity, imposed the full penalty under Section 446 CrPC.
- The appellant claimed he was unaware of the court’s orders directing the accused’s appearance and had made genuine attempts to locate the accused.
- The appellant is a person of limited means and stated that paying Rs. 1,00,000 would force him to sell his only property, causing severe hardship to his family.
- No evidence was presented by the prosecution to show that the appellant acted negligently or in bad faith.
Procedural History
- Date of bail: Not specified in judgment, but bond executed prior to trial commencement.
- Date of accused’s non-appearance: Multiple dates during trial, culminating in forfeiture proceedings.
- 01.07.2023: Order passed by Additional Judge, Rohru, District Shimla, imposing penalty of Rs. 1,00,000 under Section 446 CrPC.
- 16.08.2023: Warrant of recovery issued and returnable on this date.
- 09.01.2024: Criminal Appeal No. 9 of 2026 filed before the Himachal Pradesh High Court.
- 20.03.2026: Judgment delivered by Justice Sandeep Sharma.
Relief Sought
The appellant sought modification of the penalty imposed under Section 446 CrPC, requesting reduction to a reasonable amount considering his financial incapacity and sincere efforts to produce the accused.
The Legal Issue
Can a court under Section 446 CrPC reduce the penalty imposed on a surety at the appellate stage, and must it consider the surety’s financial hardship and efforts to secure the accused’s appearance?
Arguments Presented
For the Appellant
The appellant’s counsel argued that Section 446(3) CrPC grants courts discretionary power to remit any portion of the penalty, and this discretion is not confined to the initial order. Reliance was placed on Jameela Khader v. State of Kerala, Balraj S. Kapoor v. State of Bombay, Sualal Mushilal v. State, and Moola Ram v. State of Rajasthan, which held that remission can be granted even after the penalty order if the amount has not been fully recovered. It was submitted that the appellant had no intention to obstruct justice, had made sincere efforts to locate the accused, and that imposing the full penalty would cause irreparable financial harm.
For the Respondent
The State contended that the trial court acted lawfully in imposing the full penalty as the surety failed to discharge his statutory duty to ensure the accused’s appearance. It argued that the appellate court cannot interfere unless there is a clear illegality, and that the appellant had not challenged the order before the Sessions Court as required under Section 449 CrPC. The State further submitted that the discretion under Section 446(3) is meant to be exercised at the time of the initial order and not on appeal.
The Court's Analysis
The Court acknowledged that the trial court was legally entitled to forfeit the bond and impose a penalty under Section 446 CrPC upon the surety’s failure to produce the accused. However, it emphasized that Section 446(3) explicitly grants courts the discretion to remit any portion of the penalty and enforce payment in part only. The Court held that this discretion is not exhausted at the trial stage and may be exercised by an appellate court when the order is challenged.
"The discretion vested in the Court by virtue of Clause (3) of Section 446 can be exercised by the appellate or revisional court if the order is challenged as provided under the Code. The appellate or revisional Court, as the case may be, can always consider, even at a later stage, whether there are circumstances warranting remission of penalty."
The Court rejected the State’s argument that the appellant should have first approached the Sessions Court under Section 449 CrPC, noting that under Section 482 CrPC, the High Court retains inherent jurisdiction to prevent abuse of process and secure the ends of justice. It cited its own coordinate bench’s decision in Ram Singh v. State of Himachal Pradesh, where a similar penalty was reduced on account of the surety’s poverty and genuine efforts.
The Court further observed that the imposition of the full penalty without considering the surety’s financial condition, lack of negligence, and absence of mala fide was arbitrary. It noted that Section 446 CrPC is not meant to punish indigent sureties into destitution but to ensure compliance with judicial process. The Court held that the trial court’s failure to consider these factors amounted to a failure to exercise discretion properly.
The Verdict
The appeal was allowed. The order dated 01.07.2023 imposing a penalty of Rs. 1,00,000 was modified to require the appellant to pay only Rs. 10,000 as penalty. The appellant was directed to deposit this amount within two months from the date of the judgment with the trial court. All other pending applications were disposed of.
What This Means For Similar Cases
Discretion Under Section 446 CrPC Is Not Time-Bound
- Practitioners must argue that appellate courts can and should exercise discretion under Section 446(3) CrPC even after the trial court’s order, provided the penalty has not been fully recovered.
- The burden is on the prosecution to prove willful neglect; mere non-appearance of the accused does not justify full penalty recovery.
Financial Hardship Must Be Considered
- Courts must record findings on the surety’s economic status, employment, family obligations, and efforts made to locate the accused.
- A surety’s poverty or lack of means cannot be ignored - full penalty imposition may violate Article 21 if disproportionate.
Appellate Courts Can Intervene Under Section 482 CrPC
- Even if an appeal under Section 449 CrPC is pending, the High Court may intervene under Section 482 to correct manifest injustice.
- Failure to file an appeal does not bar the High Court from exercising inherent jurisdiction where the order is arbitrary or oppressive.
