Jitendra vs State of U.P. and Another

Shri Kant Tripathi, J.—Heard Sri Manoj Kumar Srivastava, the learned Counsel for the appellant Jitendra and the learned AGA and perused the impugned order.

The appellant Jitendra has preferred this appeal against the order dated 23-1-2009 passed by the learned Vfh Additional Sessions Judge/Special Judge appointed under the U.P. Gangsters and Anti Social Activities Act, Bareilly, in Criminal Case No. 120 of 2006, whereby the learned Special Judge has forfeited the personal bond of the appellant and directed for recovery of Rs. 50,000/- as penalty and also released him on bail on his furnishing a personal bond of Rs. 50.000/- and two fresh sureties each in the like amount and also on depositing the penalty of Rs. 50,000/-.

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.

The relevant facts are that the appellant Jitendra is being tried in regard to an offence u/s 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1956 in the court of learned Special Judge/A.S.J. Vth, Bareilly. The appellant failed to appear in the court concerned from 15-3-2007, consequently a non bailable warrant for his arrest was issued. The processes u/s 82/83, Cr.P.C. were also issued. It appears that the appellant was in the custody from 6-12-2008. The appellant moved an application for bail which was heard and disposed of by the learned Special Judge on 16-10-2006. The learned Special Judge forfeited the appellant''s personal bond and imposed upon him Rs. 50,000/- as penalty and directed that he will be released on his furnishing a personal bond of Rs. 50,000/- and two fresh sureties each in the like amount and also on his depositing the penalty of Rs. 50.000/-.

The learned Counsel for the appellant submitted that the appellant was not given any show cause notice after forfeiture of his personal bond and as such imposition of penalty was not proper. It was further submitted that the learned lower court has committed gross error of law in releasing the appellant on bail on his depositing cash amount of Rs. 50,000/- as penalty. In my opinion, these two submissions have substance.

When the appellant committed breach in appearing in the court concerned, the personal bond submitted by him was liable to be forfeited but imposition of penalty and its recovery without giving any opportunity of showing cause to the appellant was not proper. The law in this regard is well settled. As and when any bond filed for appearance is forfeited, it is incumbent on the court forfeiting the bond to give a notice to the person whose bond has been forfeited, calling upon him either to pay penalty or to show cause as 10 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 his non appearance, 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 441, Cr.P.C. are very clear in this regard.

In the instant case, the learned lower court forfeited the appellant''s personal bond by the impugned order itself but instead of giving the appellant the notice as required u/s 446, Cr.P.C. either to pay the penalty or to show cause as to why it should not be paid, determined the amount of penalty to the extent of Rs. 50,000/- and proceeded straightway to make the recovery. In my opinion, the learned lower court has not only violated the basic requirements of Section 446, Cr.P.C. but has also exceeded its jurisdiction in imposing the penalty on the appellant immediately after forfeiting the bond. It was obligatory on the learned court to give a notice calling upon the appellant 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 441, Cr.P.C., can not be sustained.

The learned lower court has committed another error of law in calling upon the appellant to pay the penalty of Rs. 50,000/- as a condition precedent for his release on bail besides calling upon him to furnish a personal bond and two fresh sureties. The law does not empower the court to require the accused to deposit cash amount for his release on bail. The imposition of the condition for depositing Rs. 50,000/- as penalty for release of the appellant on bail was beyond the jurisdiction of the learned lower court. A person is ordinarily released on bail either on his executing his own bond or on executing own bond with one or more surety as may be determined by the court. Section 446, Cr.P.C. is very specific on this point. There is no provision in the Cr.P.C. or the U.P. Gangster and Anti Social Activities (Prevention) Act to empower the court to call upon the accused to deposit cash amount as a condition precedent for his release on bail.

I am, therefore, of the view that the learned lower court has committed gross error of law in calling upon the appellant to deposit the amount of Rs. 50,000/- in cash as a condition precedent for his release on bail. The appeal succeeds and is allowed. The impugned order imposing the penalty of Rs. 50,000/- without giving show cause notice to the appellant and calling upon him to pay the same as a condition precedent for his release on bail, is set aside. The learned lower court is directed to give a show cause notice to the appellant as required by Section 446, Cr.P.C. before passing any order regarding imposition of penalty, and to decide the matter as a fresh in the light of observations made hereinbefore. The order, releasing the appellant on bail on his furnishing a personal bond of Rs. 50,000/- and two fresh sureties each in the like amount, is confirmed.