- (1.) Heard the learned counsel for the appellant and the learned A.G.A. for the respondent and perused the judgment and order dated 31.10.2011 passed by the learned Additional Sessions Judge, Court No. 7, Muzaffarnagar in Criminal Case No. 2/12 pf 2011 whereby a sum of Rs. Thirty Thou-sand has been directed to be recovered as a penalty from the appellant under Section 446 of the Code of Criminal Procedure (in short "the Code"). With the consent of the learned counsel for the appellant and the learned AGA the appeal is being disposed of finally at the stage of admission. The learned counsel for the appellant submitted that in S.T. No. 1073 pf 2009 (State v. Amarjeet), the appellant stood as a surety for the accused Amarjeet, who failed to appear in the Court, consequently, the learned trial Court proceeded under Section 299 of the Code against the accused and issued notices to his sureties and registered a misc. case under Section 446 of the Code against them. On 12.9.2011 the appellant neither appeared in the Court nor produced the accused nor moved any application, therefore, the learned trial Court forfeited the bail bond furnished by him and directed for issue of recovery certificate for recovery of Rs. 30,000/- (Rs Thirty Thousand) being the amount of the penalty. On 14.9.2011 the accused appeared in the Court and was sent to jail. The learned counsel for the appellant further submitted that there was no justification to impose the penalty and to make the recovery thereof after appearance of the accused in the Court. The learned trial Court should have given due consideration to that aspect of the matter. It was next submitted that when the learned trial Court forfeited the bail bond vide its order dated 12.9.2011, it should have given a fresh notice to the appellant calling upon him to pay the penalty or to show as to why it should not be paid but instead doing so, the learned trial Court forfeited the bail bond and proceeded immediately to recover the penalty, which was unwarranted in law.
(2.) Section 446 of the Code inter alia, provides that on proof of forfeiture of a bond, the person bound by the bond is to be served with a notice calling upon him to pay the penalty or to show-cause why it should not be paid, therefore, it was obligatory on the part of the trial Court to provide such opportunity to the appellant before proceeding to recover the penalty. It is also well settled that if in pursuance of the show-cause notice any explanation is furnished, the Court has to give due consideration to such explanation and pass appropriate order in accordance with law. Without doing so, it is not open to the Court to proceed to make recovery straightway immediately after passing of the order for forfeiture of the bail bond or personal bond. The other aspect, which was relevant in the present case, was the appearance of the accused only two days after the order dated 12.9.2011 was passed. This was one of the strongest circumstance in favour of the appellant to press for remission of the penalty but the learned trial Court did not give any consideration thereof. In this view of the aforesaid, the recovery proceedings without providing any opportunity to the appellants to show-cause cannot be upheld. The appeal is, therefore, allowed. The impugned order dated 12.9.2011 and other consequential orders are quashed. The learned trial Court is directed to reconsider the matter and provide an opportunity to the appellant to show-cause as contemplated by Section 446 of the Code. If any explanation is furnished by the appellant, the same shall be given due consideration by the learned trial Court while passing a final order under Section 446 of the Code.;