- (1.)THESE two petitioners challenge the order dated 28th August, 1991 passed by the 2nd Additional Sessions Judge, Nanded, in Sessions Case No. 162 of 1988 inflicting the penalty of Rs. 2,500/- each and directing the action for recovery of penalty under section 446 of Criminal Procedure Code, 1973.
(2.)ONE Narayan Sambhaji Boinwad was charged and tried for an offence of murder punishable under section 302, Indian Penal Code in Sessions Case No. 162 of 1988 and was convicted and sentenced to life imprisonment by the Additional Sessions Judge at Nanded. These two petitioners are the sureties and have executed the surety bond of Rs. 2,500/- each as per the order of the essions Court when accused Narayan came to be released on bail in the said case. The accused Narayan Sambhaji was examined under section 313 of Code of Criminal Procedure in the said case. But, Thereafter, he absconded and is not traced out till today. The judgment of conviction and sentence came to be pronounced in the absence of the accused and, inasmuch as the accused was not present to receive the sentence, the Sessions Court issued warrant against the concerned accused and notices to both these petitioners. The present petitioner No 1 Bapurao then made an application Ext. 51 on 3/10/1989 before the Sessions Judge for time to produce the accused and to pay the amount. It came to be rejected by an order dated 15/12/1989 and the surety bond was forfeited and penalty of Rs. 2,500. 00 was imposed. Petitioner No. 1 Bapurao was directed by the said order to pay the amount of penalty on or before 30/12/1989. Petitioner No. 2 Gajanna Rajanna also applied to the same Court by an application Ext. 61 for the same relief and his surety bond also come to be forfeited and penalty of the same amount of Rs. 2,500. 00 was also imposed. Both the sureties, Thereafter, filed an application to the Court below for remitting the penalty and for their discharge. The Additional Sessions Judge, Nanded, on consideration of the facts and circumstances, rejected the requests of both the sureties by an order dated 28th August, 1991 and imposed penalty of Rs. 2,500. 00 each and directed the steps to be taken for the recovery of the amount as arrears of fine under section 446 of the Code of Criminal Procedure. It is this order that is being challenged in the present writ petition by the two sureties.
(3.)IT is submitted on behalf of the petitioners that, the prosecuting machinery has not taken any steps to trace out the accused and no proceeding under section 82 of the Code of Criminal Procedure has been initiated. It is, therefore, submitted toat, unless action of proclamation for the absconding accused is initiated and taken under section 82 of the Code of Criminal Procedure, 1973, no action under section 446 of the said Code can be taken. It is, therefore, submitted that the impugned order of imposing the penalty and directing it to be recovered as arrears of fine is unwarranted according to law. These submissions however, cannot be accepted. The actions of issuance of proclamation and attachment for the absconding accused under section 82 of the Code and that of forfeiture of the bond and initiating the recovery of it as arrears of fine under section 446 of the Code are two distinct and independent actions. The action of forfeiture of bond and levy of penalty and subsequent procedure for recovery of the amount of penalty under section 446 of the Code of Criminal Procedure is not dependent on the action 10 be initiated under section 82 of the Code. The proclamation for absconding accused provided for by section 82 of the Code is not a condition precedent for initiating the procedure of recovery of amount of penalty under section 446 when the bond has been forfeited. The impugned order dated 28th August, 1991 directing the recovery. of amount of penalty as The arrears of fine cannot, therefore, be disturbed on this count.