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Madhya Pradesh High Court · body

2009 DIGILAW 401 (MP)

Sumiran Chaudhary v. State of M. P.

2009-03-30

S.C.SINHO

body2009
ORDER 1. Heard on IA No. 283212009 which is an application for taking documents on record. 2. For the reasons stated in this application, IA No. 283212009 is allowed. 3. With the consent of learned counsel for the parties, the petition is finally heard. 4. Applicant/surety has filed this petition under sections 397/401 of CrPC against the order dated 12.11.2008 passed by Second Additional Sessions Judge, Mandla, in Criminal Case No. 14/2007 whereby learned Sessions Judge, Mandla, had forfeited the bond amount of Rs. 20,000/and further ordered if the aforesaid amount is not recovered then the applicant will suffer SI for 6 months. 5. Accused Jaswant Singh is an accused under sections 302 and 201 of IPC and his trial is pending before Additional Sessions Judge, Mandla. The applicant had taken his bail bond for Rs. 20,000/- for producing him before Court on every date of hearing. Accused absconded from the Court on 18.10.2006, and a notice was given to applicant to produce him before Court, applicant-surety appeared before Court on 6.8.2008 and on his request he was given opportunity to produce absconding accused on 20.8.2008, 15.9,2008, 3.10.2008, 24.10.2008 and 12.11.2008 but in spite of that applicant could not produce accused Jaswant Singh. 6. Learned counsel for the applicant Shri Sanjay Patel submitted that applicant is a retired police constable and he should be given proper time to produce absconding accused. He further submitted that the Court below has committed a grave mistake in impugned order while ordering that in default of recovery of security amount, applicant will be sent to jail to suffer Simple Imprisonment but in view of section 446 (2), applicant can only be sent in civil jail for a term which may extend to 6 months. 7. Learned trial Court has rightly given a show-cause notice to applicant and further sufficient opportunities on 20.8.2008, 15.9.2008, 3.10.2008, 24.10.2008 and 12.11.2008 for producing the absconding accused and thereafter, passed impugned order of recovery of Rs. 20,000. If accused who is facing a trial under sections 302 and 201 of IPC has absconded on 18.10.2006 and till today not arrested or produced by surety applicant, in such circumstances Court has not committed any illegality while making order of recovery of whole security amount of Rs. 20,000/ but in the impugned order Court also ordered that in default of recovery of Rs. 20,000/- applicant will suffer 6 months simple imprisonment. 20,000/ but in the impugned order Court also ordered that in default of recovery of Rs. 20,000/- applicant will suffer 6 months simple imprisonment. 8. In default of penalty of bond, applicant cannot be sent for simple imprisonment for six months, but he can be sent in civil jail for a term which may extend to six months as provided under section 446 (2) 0 CrPC:" 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. (3) ..... ..... ..... (4) ..... ..... ..... (5) ..... ..... ..... 9. Thus, learned Sessions Judge, Mandla has rightly held that bail bond of Rs. 20,000/- will be recovered as a penalty where a fine is imposed by Court under CrPC. The Court shall proceed with the recovery proceeding of Rs. 20,000/- but if the above amount is not recovered, then the Court below will pass an order of imprisonment in civil jail for a term which may extend to six months, for which proforma is also provided in Form No. 51, Schedule II of CrPC. With the aforesaid modification, the revision petition is finally disposed of.