Jagannath and Kalicharan vs State of U.P.

R.K. Rastogi, J.—This Criminal Appeal has been filed against the orders dated 1.7.2008 and 17.7.2008 passed by Additional Sessions Judge, Hathras tinder Section 446 Cr.P.C. in Sessions Trial No. 169 of 2002, State v. Neetu @ Anil and another and in Cri. Misc. Case No. 07 of 2008 State v. Kali Charan and another.

The facts relevant for disposal of this appeal are that the accused appellants had stood sureties for the accused Kooka in ST. No. 169 of 2002 State v. Neetu @ Anil and another. The accused Kooka absconded. Then non-bailable- warrant was issued against him and an order was passed by the Trial Court on 1.07.2008 forfeiting surety bonds submitted by the appellants, and notices were ordered to be issued to them under Sections 446 Cr.P.C. for the date 14.7.08. On that date, the notices were not received back after service and so fresh notices were ordered to be issued. On 17.07.08 the appellants appeared before the court and moved an application that they have got the accused Kooka arrested by the police and he was present in the court and so they should be discharged. The copy of this application has been filed as annexure 3 of the affidavit filed in the appeal.

On this application the court passed an order on the same day in which it was stated at the bail bonds of the sureties had been forfeited on 1.07.08 and so there was no justification for granting the prayer and so the application was rejected. Aggrieved with that order this appeal has been filed.

Heard learned Counsel for the appellant and learned A.G.A. for the State. As the point involved in this appeal is legal one. I am deciding it on merits at the admission stage.

Learned Counsel for the appellants cited before me a ruling of this Court in Chandra Pal Singh v. State of UP. 2005 (1) U.P. C.R. 687 in [which it has been held that where the surety after receipt of the show cause notice produces the accused before the Court, there is no legal necessity to impose the penalty and to direct him to make payment of bond money and the impugned order directing the sureties to make payment of the bail bond amount was set aside by the court. It was submitted by the learned Counsel for the appellants that in the present case also the appellants had got the accused arrested and got him produced in the court and, and so the order imposing the penalty against both of them should have been set aside. There is sufficient force in this contention.

There is one more aspect of the case. There is a provision in para-3 of Section 446(1) Cr.P.C. for issuing a notice to the sureties after forfeiting the amount of the bail bond under para -1 and 2 of the above sub-section giving them opportunity either to pay the amount or to show cause as to why the amount should not be realised from them. In the present case, the show-cause-notice was issued after the order dated 1.7.08 was passed by the court below. This notice was issued in form No. 48 of Schedule 2 of the Cr.PC. and a certified copy of this notice has been filed as annexure-2. In this notice an opportunity was given to the appellants show cause as to why the amount of Rs. 50,000/- which had been forfeited vide order dated 1.7.08 be not reserved from them. Thereafter the appellant appeared before the court and moved an application on 17.07.08 that they had got the accused arrested, and so produced in the court and they should be discharged and the recovery should be cancelled.

Learned Trial Court has rejected this application on this ground that order for forfeiture of the amount had already been passed on 1.7.08 and so the application was rejected. It is however, to be seen that the appellants were provided an opportunity of show cause in reply to the notice issued in accordance with the requirements of para-3 of Section 446(1) Cr.P.C. as well as the prescribed form No. 48 in second schedule of the Cr.P.C. and when a reply had been filed by the appellants in response to the show-cause-notice, the Lower Court should have considered that application cum objection on merits and suitable orders should have been passed thereon on merits. The order for rejecting this application merely on the ground that order for forfeiture of the bail amount had already been passed on 1.7.08, is illegal and cannot be sustained.

The appeal therefore, is deserves to be allowed. It is accordingly allowed to this extent with the order dated 17.7.08 passed by the Trial Court on the application of the appellants moved on the same day is set aside and the Learned Trial Court is directed to re-consider this application of the appellant and pass or suitable orders thereon on merits in accordance with the requirements of para-3 of Section 446(1) Cr.P.C.

The appellant shall appear in the Trial Court on 29.9.08.