Court No. - 61
Case :- CRIMINAL APPEAL No. - 170 of 2009 Appellant :- Ram Singar Pandey Respondent :- State Of U.P.
Counsel for Appellant :- Ashish Kumar Sinha Counsel for Respondent :- Govt. Advocate
Hon'ble Rang Nath Pandey,J.
1. The instant appeal has been preferred against order dated 14.11.2008 passed by learned Judicial Magistrate, Kushinagar in Criminal Case No. 2122 of 2007 (State of U.P. Vs. Sonu @ Brijesh) under Section 446 of Cr.P.C., whereby the appellant was directed by Court below to deposit the money and issue recovery warrant against the appellant.
2. It is submitted by learned counsel for the appellant that the appellant was surety of accused Sonu @ Brijesh, S/o Shri Ram Singar Pandey, R/o Lohapark Maltola, Kaptanjganj, District Kushinagar in Case Crime No. 135 of 2005, Police Station Kaptanganj, District Kushinagar. It is further submitted by counsel for the appellant that after enlarged on bail, accused was started to abscond from the proceedings of law and subsequently the proceedings under Section 446 of Cr.P.C. were initiated against the present appellant as he is the surety of the accused Sonu@ Brijesh.
3. Learned counsel for the appellant has lastly submitted that procedure has not been adopted as mentioned under Section 446 of Cr.P.C. The notice was not served upon him. The Court without service of notice imposed a penalty and, therefore, the order is not sustainable under the law.
4. Per contra, learned A.G.A. has submitted that record is very clear and it depicts that notice has been served personally.
5. It is on record that this Court had directed on 20.01.2009 that if the appellant deposit fifty percent of Rs. 15000/- i.e. 7,500/- within a period of fifteen days then till the next date of listing remaining fine shall be stayed. Thereon, learned counsel for the appellant states at the bar that Rs. 7,500/- was deposited by the appellant as directed vide order dated 20.01.2009.
6. Heard learned counsel for the appellant as well as learned A.G.A. and perused Section 446 of Cr.P.C.
7. There is a procedure when bond has been forfeited. Section 446 Cr.P.C. is reproduced hereinbelow:-
"Section 446. Procedure when bond has been forfeited; (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited.
Or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was take, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited.
the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation.- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code.
1[provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.]
(3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only."
8. I have gone through the record.
9. Perusal of the record indicates that when the accused started to abscond from the proceedings of law then notice was issued against the present appellant under Section 446 Cr.P.C.; and despite personal service of notice, the appellant did not present himself, therefore, the Court has no option but to proceed under Section 446 (2) Cr.P.C as it is categorically prescribed under sub-Section (2) of Section 446 that if sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code and as per the provision of sub-Section 2, the Court may realize the amount as mentioned in the Act. There is also sub-Section 3 in that Section wherein it has been mentioned that the Court may [after recording its reasons for doing so], remit any portion of the penalty mentioned and enforce payment in part.
10. In view of the above, there is no illegality in the order passed by the Court concerned.
11. Learned Counsel for the appellant, however, prayed that the appellant may be treated leniently and fine may be reduced in view of the fact that the matter is related to the year 2005 and he is pursing the legal process for the last 12 years and he has spent a lot in defending himself.
12. In view of the hardship undertaken by the appellant, I am of the view that the amount be reduced as Rs.2,500/- instead of remaining amount of fine i.e. Rs. 7,500/-. The appellant shall now deposit the amount so modified within a period of one month from the date of production of a copy of this order before the Court concerned, failing which the learned trial Court shall be at liberty to realize the fine in accordance with the procedure made in Section 446 Cr.P.C.
13. With the aforesaid observations and directions, the appeal is disposed of finally.
Order Date :- 22.2.2018 Ashish