Chet Ram vs State of U.P.

Shri Kant Tripathi, J.—Heard Sri Ajay Tiwari, the learned Counsel for the Appellant and the learned A.G.A. and perused the impugned order.

The Appellant Chet Ram has preferred this appeal against the order dated 8.5.2009, passed by the learned Special Judge Gangster Act/A.S.J. Vth, Bareilly in Criminal Case No. 160 of 2000, whereby the learned Special Judge has issued a recovery warrant against the Appellant for recovery of Rs. 25,000 being the amount of penalty on account of forfeiture of the personal bond of the Appellant.

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.

It may be mentioned that the Appellant Chet Ram is an accused in the Criminal Case No. 160 of 2000, State v. Babu and Ors. pending before the lower court. The case of co-accused Nizamuddin was decided on 25.5.2002 but the cases of remaining three accused namely, Babu, Appellant Chet Ram and Shafiq could not be decided due to their absence. The Appellant Chet Ram was not turning up and as such the learned Special Judge issued a non-bailable warrant for his arrest and also issued processes u/s 82/83, Cr. P.C. The properties of the Appellant were attached on 11.4.2008 in pursuance of the attachment order issued u/s 83, Cr. P.C. Even after that attachment the Appellant did not turn up. Consequently the learned Special Judge forfeited the Appellant''s personal bond and directed for issue of a warrant for recovery of Rs. 25,000 as penalty from the Appellant and further directed for issue of a non-bailable warrant and processes u/s 82/83, Cr. P.C. against the Appellant.

The learned Counsel for the Appellant submitted that the Appellant was in jail in connection with some other case and as such could not appear before the learned Special Judge. It was further submitted that the learned Special Judge has not given any show cause notice u/s 446, Cr. P.C. to the Appellant before issuing the warrant for recovery of the penalty of Rs. 25,000. Issue of the recovery warrant without giving a show cause notice to the Appellant was invalid. The learned Counsel further submitted that the Appellant would appear before the Special Judge within the time allowed by this Court and to move appropriate application before the learned Special Judge for modifying the order issuing the recovery warrant. It was further submitted that the impugned order be modified accordingly.

In my opinion, issue of a show cause notice u/s 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. 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.

It is not clear as to whether the trial court had given any show cause notice to the Appellant or not. It is for the Special Judge to examine the record and arrive at a conclusion on this point. If no such notice has been given to the Appellant, the Special Judge shall provide an opportunity to the Appellant to show cause against the proposed recovery. If the show cause notice has already been given to the Appellant, the Court shall provide one more opportunity to the Appellant to submit his explanation against the show cause notice. If the Appellant offers any cause in pursuance of the opportunity so given to him against the proposed recovery, the trial court shall consider the same and pass a reasoned order thereon as required by Section 446, Cr. P.C. These procedural formalities shall be done only when the Appellant surrenders before the Court concerned within thirty days from the date of this order. If the Appellant so surrenders and also moves an application for a fresh bail or recall of warrant/processes u/s 82/83, Cr. P.C., the learned Special Judge shall give due consideration to his application and pass appropriate order thereon.

If the Appellant surrenders before the learned Special Judge within the time limit fixed by this Court, the impugned order will stand set aside, otherwise the same would remain operative.

The appeal stands disposed of finally in the light of the observations made hereinbefore.