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2006 DIGILAW 501 (UTT)

RAM PAL v. STATE OF UTTARANCHAL

2006-09-05

PRAFULLA C.PANT

body2006
PRAFULLA C. PANT, J. ( 1 ) HEARD. ( 2 ) THIS appeal preferred under section 449 of the Code of Criminal Procedure, 1973, is directed against the order dated 02. 04. 1998, passed by learned sessions Judge, Pauri Garhwal in Sessions Trial No. 49 of 1995, whereby appellant Ram Pal, who stood surety in said trial for the accused, failed to deposit the amount for which the bond was furnished by him, and after notice, a penalty of Rs. 50,000/- was imposed against the appellant and orders for recovery of the same were issued. 2. This appeal was originally filed before the Allahabad High Court and was admitted there on 30. 10. 1998, from where it has been received by transfer to this Court under Section 35 of the u. P. Re-organization Act, 2000, for its disposal. ( 3 ) BRIEF facts are that a sessions trial No. 49 of 1995; State v. Sushil Kumar, under Section 394, 397, 120-B, 411, 412 of the I. P. C. and under Section 25 of the arms Act, was in progress before the trial court. It appears that the accused, for which the appellant stood surety, at some stage failed to appear before the court and his bail was cancelled and bail bonds were forfeited. The surety Ram Pal appears to have been served with notice, but failed to show any cause as to why the recovery of the amount be not made from him. Thereafter, by the impugned order dated 02. 04. 1998, amount of Rs. 50,000/-, the amount for which the appellant stood surety, was imposed as penalty and directed to be recovered from the appellant. ( 4 ) BEFORE further discussions, it is pertinent to mention here, the relevant provision of law applicable to the case. Sub-section (2) of Section 446 of the Code of Criminal Procedure, 1973, reads as under:"446. Procedure when bond has been forfeited. (1 ). . . . . . . ( 4 ) BEFORE further discussions, it is pertinent to mention here, the relevant provision of law applicable to the case. Sub-section (2) of Section 446 of the Code of Criminal Procedure, 1973, reads as under:"446. Procedure when bond has been forfeited. (1 ). . . . . . . (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. " ( 5 ) LEARNED counsel for the appellant submits that, since, the appellant had been in jail for about two and a half months, in connection with this case (i. e. due to failure in depositing the amount imposed as penalty) and it is further submitted that said period may be counted under provision of sub-section (2) of Section 446, for default in payment of the penalty imposed. The counter affidavit filed on behalf of the respondent State corroborates this fact that in connection of this case, the appellant had been in jail for 14 days from 24. 08. 2000 to 06. 09. 2000 and again he is in jail since, 10th July, 2006. It is also stated in the counter affidavit that both the periods, mentioned above, were in connection with non-payment of the penalty imposed by the trial court. ( 6 ) AFTER considering the above submissions of learned counsel for the parties, this Court feels it just and proper to order imprisonment for two and a half months under the provisions of sub-section (2) of section 446 of the Code of Criminal Procedure, 1973, for non-payment of the amount imposed as penalty, which could have been recovered as fine, as the same is found "unpaid and not recoverable". ( 7 ) ACCORDINGLY, the appeal is disposed of with the direction that on completion of a period of two and a half months in jail, the appellant shall be set at liberty, if not wanted in connection with any other case. ( 7 ) ACCORDINGLY, the appeal is disposed of with the direction that on completion of a period of two and a half months in jail, the appellant shall be set at liberty, if not wanted in connection with any other case. The said period spent in imprisonment shall be treated discharge in lieu of non-payment of penalty, as observed above. Appeal disposed of. --- *** --- .