- (1.) HEARD Sri S. N. Singh, learned counsel for the revisionists and the learned A.G.A. With the consent of the parties, the revision is being finally disposed of at admission stage.
(2.) REVISIONISTS Smt. Ram Pyari, Raja Singh, Sri Jai Narain (dead) and Bheekam Singh stood sureties for Karan Singh and Jitendra Singh respectively in a criminal case pending before 3rd Addl. C.J.M., Kanpur Dehat. It appears from the record that the said accused persons did not . appear and on 6.7.1989. the bonds of the sureties were forfeited and notices were issued to them under Section 446, Cr. P.C. They did not file any objection to the show cause notice nor they did show any cause as to why the amount may not be recovered from them. Subsequently, when recovery of warrants were issued, it appears that they moved an application for recalling the order directing to issue recovery of warrants against them. The learned Magistrate rejected that application on the ground that he had no powers to recall his order. The learned Sessions Judge before whom Criminal Appeal No. 22 of 1992 was filed also held that the Magistrate had no powers to recall his order. Both the Courts below failed to consider the grounds on which the prayer for recalling the order was made. In any case, the appellate court could have looked into the grounds on which the prayer for recalling the order was being made. Both the learned Magistrate as well as the appellate court failed to consider the provisions of Section 446, sub-clause (3) of the Cr. P.C. which says that the Court may at its discretion remit any portion of the penalty mentioned and enforce payment in part only. The courts below could have atleast remitted portion of the penalty in case it was not possible to recall the order. In any case, the courts below should have discussed the grounds on which the prayer for recalling the order was made and should have given reasons for not accepting such grounds. If the surety discloses reasons as to why he could not file objection to the show cause notice within the time allowed by the Court, his objection can always be entertained subsequent to the passing of the order for enforcement of recovery if the surety shows reason for not filing objection-earlier. In this view of the matter, the orders of the Courts below deserve to be set aside and are hereby set aside. The case is sent back to the Magistrate concerned for disposal of the application for recalling the order directing the recovery against the sureties on merits.
(3.) THE revision on behalf of revisionist No. 3 Sri Jai Narain is misconceived as he was already dead at the time when the revision was filed. THE revision could have been filed by his heirs against whom the recovery may be pressed.;