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2009 DIGILAW 2934 (ALL)

Raj Pal Singh v. State Of U. P.

2009-08-24

KANT TRIPATHI

body2009
Hon'ble Shri Kant Tripathi,J. 1. The appellants Raj Pal Singh and Raj Kumar, who stood as sureties for the accused Fauran Singh in the sessions trial no. 173 of 2008 pending in the court of Additional Sessions Judge, Fast Track Court No.1, Firozabad, have preferred this appeal against the order dated 21.4.2009 passed by the learned Additional Sessions Judge, whereby the learned Additional Sessions Judge forfeited the bail bonds furnished by the appellants and issued warrants for recovery of the amount of their bail bonds. 2. With the consent of the learned counsel for the appellant and the learned A.G.A. the instant appeal is being finally disposed of at the stage of admission. 3. Heard the learned counsel for the appellants and the learned AGA and perused the lower court record. 4. The learned counsel for the appellants submitted that appellants were not given any notice as required by section 446 Cr.P.C. after forfeiture of their bail bonds and as such the recovery proceeding is illegal. It was further submitted that the accused Fauran Singh had been appearing in the court concerned and had lastly appeared on 13.2.2009 but remained absent on 20.2.2009 and also on subsequent dates. The accused Fauran Singh, however, appeared on 15.5.2009 and moved application for recall of the warrant but the learned Additional Sessions Judge rejected the application for recall of warrant and committed the accused to custody and since then the accused Fauran Singh is in jail. The learned counsel further submitted that when the accused had appeared before the court concerned on 15.5.2009, there was no justification for the learned Additional Sessions Judge to proceed with the recovery against the appellants. 5. The learned AGA, on the other hand, submitted that when the accused absented from appearing in the court, the learned Additional Sessions Judge was justified in directing for making the recovery through warrants. 6. A perusal of the order dated 21.4.2009 reveals that the learned Additional Sessions Judge had issued notices to the appellants before passing the order dated 21.4.2009 but neither they appeared nor moved any application consequently the learned Additional Sessions Judge forfeited the bail bonds furnished by the appellants and directed for recovery of the amount of the bail bonds. 6. A perusal of the order dated 21.4.2009 reveals that the learned Additional Sessions Judge had issued notices to the appellants before passing the order dated 21.4.2009 but neither they appeared nor moved any application consequently the learned Additional Sessions Judge forfeited the bail bonds furnished by the appellants and directed for recovery of the amount of the bail bonds. It appears that the bail bonds of the appellants were not forfeited prior to 21.4.2009 and as such the notices served on the appellants prior to 21.4.2009, can not be regarded as notices as contemplated by section 446 Cr.P.C. 7. The law in this regard is well settled. As and when bail bond filed by any surety is forfeited, it is incumbent on the court forfeiting the bail bond to give a notice to the surety whose bail bond has been forfeited, calling upon him either to pay penalty or to show cause as to 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 the 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. The provisions of section 446(3) Cr.P.C. are very clear in this regard. 8. 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. The provisions of section 446(3) Cr.P.C. are very clear in this regard. 8. In the instant case, the learned lower court forfeited the bail bonds furnished by the appellants, by the impugned order dated 21.4.2009 but instead of giving the appellants the notices as required by section 446 Cr.P.C. either to pay penalty or to show cause as to why it should not be paid, straightway issued warrants for recovery of the amount, which was not legal and contrary to the import of section 446 Cr.P.C. It was obligatory on the learned court to give notices calling upon the appellants to pay the penalty or show cause as to why it should not be paid. Without doing so, it was not open to the learned lower court to impose penalty and recover the same. In view of these reasons, the impugned order which has been passed in utter disregard to the provisions of section 446 Cr.P.C., can not be sustained. 9. The learned lower court should also give due consideration to the fact that the accused has not only appeared but is also in the custody of the court before passing any order under section 446 Cr.P.C. 10. The appeal is allowed. The impugned order dated 21.4.2009 and subsequent proceedings in pursuance thereof are set aside. The learned Additional Sessions Judge is directed to reconsider the matter and pass appropriate order afresh in the light of the observations made here in before, after providing a reasonable opportunity to the appellants to show cause as contemplated by section 446 Cr.P.C.