- (1.) S. R. Bhargava, J. This revision has arisen from a judgment and order dismissing appeal under Sec. 449 Cr. P. C. Parties counsel have been heard at admission stage and revision is being disposed of at this stage.
(2.) FACTS giving rise to this revision are that revisionist Ram Charan Lal alias Ratan Lal was surety of accused Kamta Singh in Crime No. 164 of 1984, Case No. 2016 of 1987, under Section 10 of the Forest Act pending in the court of A. C. J. M. , Rampur. Kamta Singh jumped bail. On 7th May, 1987 his bonds were forfeited. But he came to attend the court subsequently. Again on 31st December, 1989 he absented. Then the court forfeited his bonds. It may be referred that when Kamta Singh re-appeared he submitted fresh surety bonds. On 21st December, 1989 after forfeiting the bonds in the breath the Magistrate directed issue of recovery warrant against the sureties of Kamta Singh. It appears that recovery warrant was issued against the revisionist also. On 7th March, 1990 revisionist moved application to the Magistrate that subsequently Kamta Singh appeared and submitted fresh surety bonds. He prayed that the recovery warrant may be recalled. Learned Magistrate held that revisionist is one of the sureties and is bound to pay the amount of his bond. Hence he dismissed the applications. Against tnis, revisionist preferred appeal. The order passed by Magistrate on 7th March, 1990 was treated as an order under Sec. 446 Cr. P. C. and his appeal was heard on merits. The learned Sessions Judge, hearing the appeal noted that before imposition of penalty no notice contemplated under Sec. 446 Cr. P. C. was issued to the revisionist. But he held that no prejudice was caused because the revisionist appeared and filed applica tion. Hence he dismissed the appeal. In revision it may be stated that wherever in a statute penalty is prescribed that penalty can be imposed only according to procedure given in the statute. A procedure prescribed in a statute for imposition of penalty has always to be considered mandatory. When penalty is imposed without compliance of mandatory procedure the same cannot be upheld on the ground that no prejudice has been caused. Secondly it is evident that the revisionist moved application subsequently to the order of realisation. It is evident that he had no opportunity of being heard at the time of passing of order for realisation of the amount of bond. This means that the penalty was imposed upon the revisionist behind his back without any opportunity of being heard.
(3.) TO my mind the order for realisation of penalty and subsequent order refusing to recall the realisation of penalty are illegal and must be quashed. Revision is allowed. Order for realisation of penalty is quashed. The Magistrate concerned shall be at liberty to pass appropriate order to the effect that there is evidence that bonds of the sureties have been forfeited. He shall then be at liberty to issue notices to the sureties. After hearing the sureties he may pass such order regarding penalty as he deems fit.;