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2009 DIGILAW 2576 (ALL)

SHAMBHOO NATH v. STATE OF U. P.

2009-07-16

SHRI KANT TRIPATHI

body2009
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard the learned counsel for the appellant and the learned AGA and perused the record. 2. The appellant Shambhoo Nath has preferred this appeal against the order dated 10.11.2008 passed in Misc. Case No. 40 of 2006, by the learned Additional Sessions Judge, Fast Tract Court No. 2, Bhadohi, whereby the learned lower Court has rejected the appellant’s application for recall of the orders dated 22.9.2006 and 7.10.2006. 3. As per the office report, the appeal is time barred. The learned counsel for the appellant submitted that the appellant has filed a petition under Section 482, Cr.P.C. well within the time but the petition was found incompetent and Hon’ble Ravindra Singh, J. passed the order dated 3.2.2009 directing the appellant to convert the petition as a criminal appeal. Accordingly the appellant filed the instant criminal appeal. The record of the Criminal Misc. Case No. 2337 of 2009 filed under Section 482, Cr.P.C. have also been annexed with this appeal. In my opinion, the appellant has properly explained the delay and has given sufficient causes for condonation of the delay. Accordingly the delay is condoned. 4. Heard the learned counsel for the appellant and the learned AGA and perused the record. 5. With the consent of the learned counsel for the appellant and the learned A.G.A. the appeal is being finally disposed of at the stage of admission. 6. The relevant facts leading to this appeal are that the appellant Shambhoo Nath stood as one of the sureties of the accused Babu Lal in the case crime No. 328 of 2000 under Sections 459, 380, 411, IPC, which was registered as S.T. No. 105 of 2001 on its committal to the Court of Sessions. The accused Babu Lal failed to appear on 5.6.2006. Consequently the learned Additional Sessions Judge issued coercive processes against him including a non bailable warrant, proclamation under Section 82, Cr.P.C. and attachment order under Section 83, Cr.P.C. The learned Additional Sessions Judge issued notices to the sureties vide his order dated 27.6.2006. On 8.11.2006, the accused Babu Lal was declared as absconder and proceedings under Section 299, Cr.P.C. were directed to be held against him. Later on the accused Babu Lal appeared before the learned Additional Sessions Judge and was tried and acquitted in due course but the proceedings against the appellant under Section 446, Cr.P.C. remained pending. On 8.11.2006, the accused Babu Lal was declared as absconder and proceedings under Section 299, Cr.P.C. were directed to be held against him. Later on the accused Babu Lal appeared before the learned Additional Sessions Judge and was tried and acquitted in due course but the proceedings against the appellant under Section 446, Cr.P.C. remained pending. When the appellant and the other surety failed to produce the accused their bonds were forfeited vide the order dated 7.10.2006 and the learned Additional Sessions Judge directed that a sum of Rs. 20,000/- be recovered from the appellant as penalty and accordingly issued recovery warrant to the Collector under Section 421 read with Section 431, Cr.P.C. for making the recovery as arrears of land revenue. A similar order was also passed against the other surety Pyare Lal. On coming to know the order dated 22.9.2006 and 7.10.2006 of the learned Additional Sessions Judge, the appellant moved an application for recalling the same but the learned Additional Sessions Judge rejected the appellant’s application on the ground that he had no jurisdiction to recall the order dated 22.9.2006 and 7.10.2006 which had become final and again directed for issue of recovery warrant in continuation of the earlier order. The said orders of the Additional Sessions Judge have been impugned in this appeal. 7. It was not disputed before me that the appellant stood as a surety for the accused Babu Lal in the above-mentioned case and the said accused failed to appear in the Court concerned but he subsequently appeared and faced the trial and was ultimately acquitted. It was thus, a case where the accused temporarily absented from appearing in the Court but later on appeared. It is not a case where the accused has absconded permanently and his whereabouts were not known. The learned lower Court has failed to give due consideration to these factual aspects of the matter and rejected the appellant’s application mainly on the ground that it had no jurisdiction to recall the order whereby a recovery warrant was directed to be sent to the Collector for recovery of the penalty. Section 446 (3), Cr.P.C. empowers the Court to remit any portion of the penalty and impose payment in part only after recording its reason for doing so. When the Court has power to remit the penalty it cannot be contended that the penalty once imposed can not be modified. Section 446 (3), Cr.P.C. empowers the Court to remit any portion of the penalty and impose payment in part only after recording its reason for doing so. When the Court has power to remit the penalty it cannot be contended that the penalty once imposed can not be modified. When the appellant had appeared before the Court concerned and contended that the accused had appeared, tried and acquitted and had not been absconding permanently, it was the duty of the learned Additional Sessions Judge to consider those explanations and pass appropriate order as per the provisions of Section 446 (3), Cr.P.C. There was no justification to maintain the order imposing the penalty on the appellant after appearance of the accused and even after his trial and acquittal. The appellant had stood surety to produce the accused Babu Lal in Court. There may be various reasons of absence of the accused and sometimes beyond the control of the surety. In such situation the security cannot be penalised if the accused appears subsequently and faces trial and the case ends either in acquittal or conviction. 8. The legality of the orders imposing penalty on the appellant and issuing a recovery warrant for recovery of the penalty has also been challenged in this appeal. The learned counsel for the appellant submitted that the appellant was not given any show cause notice as required under Section 446, Cr.P.C. The learned Additional Sessions Judge instead of giving any such notice, immediately after forfeiture of the bail bond directed issue of recovery warrant which was in utter disregard to the requirement of Section 446, Cr.P.C. Before proceeding to examine this submission it seems to be justified and expedient to entertain factual aspects in this regard. Copies of the impugned order and the order sheet of the case are on record. Copies of the impugned order and the order sheet of the case are on record. On 27.6.2006 the learned Additional Sessions Judge directed issue of notices to the appellant and the other surety Pyarey Lal but it is not clear whether the notices so directed to be issued were show cause notices or were the notices merely to call upon the sureties to produce the accused, but one thing is very clear from the order dated 27.6.2006 itself and that is the bail bond furnished by the appellant had not been forfeited till then and as such the notice directed to be issued to the appellant vide the order dated 27.6.2006 was not a notice as contemplated by Section 446, Cr.P.C. A perusal of the order dated 7.10.2006 reveals that the learned Additional Sessions Judge found that the sureties were not present despite service of notices, consequently, their bonds were forfeited (SAMPRIHIT). It is thus clear that the bond furnished by the appellant was forfeited for the first time on 7.10.2006 but the learned lower Court after forfeiture of the bond did not issue any notice to the appellant to pay the penalty or to show cause as to why it should not be paid, as required by Section 446, Cr.P.C. and straightway directed for recovery of the amount of the bond as arrears of land revenue and issued a recovery warrant to the Collector. Accordingly, the recovery proceeding is being done by the Collector, Bhadohi. 9. The learned Additional Sessions Judge had no power to issue recovery certificate straightway immediately after forfeiture of the bond furnished by the sureties without giving any notices to them either to pay the penalty or to show cause as to why it should not be paid. 10. In my opinion, issue of a show cause notice under Section 446, Cr.P.C. to the person, whose bond has been forfeited before issuing recovery warrant, is mandatory. It is the duty of the Court to give a notice to the person whose bond is or has been forfeited, calling upon him either to pay the penalty or to show cause why it should not be paid. If he pays the penalty in pursuance of the notice, the matter ends. It is the duty of the Court to give a notice to the person whose bond is or has been forfeited, calling upon him either to pay the penalty or to show cause why it should not be paid. If he pays the penalty in pursuance of the notice, the matter ends. If he does not pay the penalty and offers some explanations showing reasonable causes of non-appearance of the accused, the Court has to consider the causes and pass a reasoned order thereon. If the cause shown is not sufficient the amount of the penalty should be determined by the Court and if the penalty so determined remains unpaid, the Court has power to make recovery of the penalty as fine. If the person to whom the show cause notice is served, offers sufficient causes, the Court has power to discharge the notice and remit the penalty. The order remitting the penalty wholly or partly must be based on reasons to be recorded by the Court. 11. In view of aforesaid reasons the impugned order dated 7.10.2006 and subsequent proceedings being done in pursuance thereof cannot be upheld and are liable to be set aside. 12. The appeal succeeds and is allowed. The impugned order dated 7.10.2006 and the recovery proceeding being held in pursuance of the said order are set aside. The lower Court is directed to reconsider the matter in the light of the observations made hereinbefore and pass appropriate order in accordance with law after giving a show cause notice to the appellant as contemplated in para 3rd of the sub-section (1) of Section 446, Cr.P.C. and also after providing him a reasonable opportunity of hearing. ————