JUDGMENT Umeshwar Pandey, J.
1. Heard learned counsel for the appellant and the learned A.G.A.
2. This appeal under Section 449 Cr.P.C. has been directed against the order dated 07.01.2005, whereby the Additional Sessions Judge (F.T.C. No. 5) Etah, has sent the appellant to undergo sentence of civil imprisonment for a term of six months for his default in producing the accused - Khandool during the trial of S.T. No. 715 of 2002.
3. A perusal of the impugned order shows that the appellant had stood surety to the aforesaid accused for his appearance in the court and had executed surety bond of Rs. 30,000/- to the court. Inspite of getting notice, the accused absented. A show cause notice under Section 446 Cr.P.C. was served upon this appellant Dharmendra but he neither came himself nor brought the accused before the court. No explanation was sent by him to the court. It is thereafter that the recovery warrant was issued against him for realization of bond money. Inspite of that the appellant did not come to the court, as such warrant of arrest was issued against him upon which he was arrested and brought before the court on 07.01.2005 when the impugned order was passed.
4. The court below, while passing the order of civil imprisonment against the appellant under the proviso to Section 446(2) Cr.P.C., it so appears, has kept aside the entire procedures, as required for recovery of such bond money and as provided under Section 421 Code of Criminal Procedure. It would be relevant to extract the provisions of Section 421 Cr.P.C. for the purposes to appreciate the requirement of a court relating to the procedure to be followed in such matters.
5. Warrant for levy of fine.-- (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may --
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:..............
(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law.......
6. In view of the aforesaid procedure provided under the Code for realization of fine by a Court, which has imposed it, it is mandatory that the court issuing such realization warrant must address it to the authorities concerned and obtain report about its execution. As has been done in the present case, a court by simply relying upon the statement of the surety that he is not possessed of sufficient means/property for making payment of the stipulated money of bond to the State an order for his imprisonment in civil prison could not be passed under Section 446(2) of the Code. The court below in this case, when had issued warrant for realization of bond money against the appellant surety, it failed to strictly follow the entire procedure as provided under Section 421 of the Code. The Court should have sent a realization warrant to the Collector also for its execution and recovery of the bond money as land revenue and should have also required his report thereon within a stipulated period. No such procedure has been adopted nor there is any reference as to a report received from the authorities regarding the said recovery. A simple statement of the appellant surety that he is not in a financial position to make payment of the bond money, would not be sufficient for the purposes to hold that the said penalty money cannot be recovered in the manner as provided under Section 421 of the Code. As such, there are patent procedural mistakes, which appear to have been committed by the court below rendering the impugned order as illegal. It requires to be interfered with and set aside in the present appeal.
7. In such circumstances, the present appeal is allowed and the impugned order dated 07.01.2005 passed by the court below is hereby set aside. It is however, directed that the court below shall issue the release order of the appellant- Dharmendra alias Pappu and would start fresh proceedings as provided under the Code and as referred to above in the judgment to realize the bond money from the appellant.