List has been revised.
None appeared for the appellants Malhoo and Siraj Ahmad. Learned AGA is present.
Heard learned AGA and gone through the record.
This appeal has been filed against the order dated 2.8.2005 passed by the Additional Sessions Judge, Court No. 2, Sultanpur, in a proceeding under Section 446 Cr.P.C., by which bail bond of accused were forfeited and sureties were directed to deposit the security amount of Rs. 25,000/- of accused Raj Bahadur in Session Trial No. 251 A/95, under Section 302 I.P.C. of Police Station Kotwali Dehat, District Sultanpur.
A perusal of the impugned order, which is on record, reveals that the sureties were seeking time to produce the accused but they were not able to produce the accused persons in the court so in that continuation, on 2.8.2005, they again moved an application for time to produce accused persons. This application was rejected and warrant of realisation was issued against sureties Malhoo and Siraj Ahmad.
A perusal of the impugned order again reveals that no show cause notice to the sureties was issued, directing them to show cause as to why their sureties amount be not forfeited. Apex Court in the case of Ghulam Mehdi Vs. State of Rajasthan reported in A.I.R. 1960 SC 1185 and this Court in the case of Mahmood Hasan Vs. State reported in 1979 Cr.L.J. 1439 has held that Section 446 deals with two stages. The first stage requires the ground of satisfaction to be recorded by the Judge or Magistrate concerned for ordering forfeiture and after recording such forfeiture show cause is to be issued. An order for recovery can be made only on fulfilling the two steps contemplated by Section 446. Where no opportunity has been given to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance of law and should be quashed.
In view of the above, the recovery order is liable to be quashed and hereby quashed.
The appeal is disposed of finally with a direction to the court concerned to issue show cause notice to the sureties to show cause as to why their sureties bond be not forfeited.
Order Date :- 26.11.2012 Madhu