Dukh Haran Singh vs State of U.P.

Giridhar Malaviya, J.—This appeal under Section 449, Cr. P.C. has been preferred against the order dated 2771984 passed by the 1st Additional Sessions Judge, Faizabad in Case No. 6 of 1984 directing imprisonment of the appellant

For three months and recovery of Rs. 5,000 as penalty from the appellant for not producing Ganga Ram for whom he had stood surety in a case under Section 395, Indian Penal Code. It was further directed that a warrant of realization of Rs. 5,000 was to be issued against the opposite party and would be realized as land revenue and the order was directed to be sent to the District Magistrate, Faizabad for execution within three months. The order further mentioned that nonbailable warrant should be issued against the appellant executable within a fortnight. The order further said that appellant shall, for recovery of the penalty, undergo three month''s imprisonment in civil jail.

Sri S.I. Ahmad learned counsel appearing on behalf of the appellant has challenged the said order on the ground that the court below ought not to have directed that the appellant shall undergo three months'' imprisonment in a civil jail even if the amount of penalty had been paid or had been realized from the appellant.

Section 446, Cr. P.C. contemplates that when the bond of a person executing the bond has been forfeited then he should be called upon to pay the penalty or to show cause why the penalty should not be paid. It is only when the cause shown is not sufficient and the person fails to pay the amount of penalty that an order for recovery of the penalty amount is contemplated as if it was a fine imposed under the Code. Proviso to Section 446 (2), Cr. P.C. further contemplates that where such penalty is not paid and cannot be recovered then the person has to be imprisoned in civil jail for a term not to exceed six months.

In view of the provisions of Section 446, Cr. P.C. learned counsel for the appellant is justified in challenging this portion of the impugned order whereby the appellant has been unnecessarily directed to undergo three months'' imprisonment in civil jail even if he pays the penalty of Rs. 5,000/.

Learned counsel for the appellant further contended that the appellant had not appeared before the trial court as according to his instruction he could not come to know about the notice. Be that as it may, now after more than 12 years the question of any notice to be again issued to the appellant would not be serving the ends of justice even if the appellant may satisfy this Court that the notice had not been really served on him. Learned counsel for the appellant has, therefore, only requested that the amount of penalty from Rs. 5,000/ may be reduced to a sum of Rs. 2,000/.

Considering the fact that a long period has lapsed since the order was passed by the trial court and that he has also approached this Court by way of appeal the amount of penalty is reduced from Rs. 5,000 to Rs. 2,000. The appellant may deposit this amount of Rs. 2,000 within four months from today failing which it shall be realised from tire appellant in accordance with the provisions of the Criminal Procedure Code.

The appeal is accordingly allowed to theextent indicated hereinbefore.