- (1.) R. K. Rastogi, J. This Criminal Appeal has been filed against the orders dated 1. 7. 2008 and 17. 7. 2008 passed by Additional Sessions Judge, Hathras under Section 446, Cr. P. C. in Sessions Trial No. 169 of 2002, State v. Neetu @ Anil and another and in Civil Misc. Case No. 7 of 2008, State v. Kali Charan and another.
(2.) THE facts relevant for disposal of this appeal are that the appellants had stood sureties for the accused Kooka in ST. No. 169 of 2002 State v. Neetu @ Anil and another. THE accused Kooka absconded. THEn non-bailable-warrant was issued against him and an order was passed by the Trial Court on 1. 7. 2008 forfeiting surety bonds submitted by the appellants, and notices were ordered to be issued to them under Section 446 Cr. P. C. for the date 14. 7. 2008. On that date, the notices were not received back after service and so fresh notices were ordered to be issued. On 17. 7. 2008 the appellants appeared before the Court and moved an application that they have got the accused Kooka arrested by the police and he was present in the Court and so they should be discharged. THE copy of this application has been filed as Annexure 3 of the affidavit filed in the appeal. On this application the Court passed an order on the same day in which it was stated that the bail bonds of the sureties had been forfeited on 1. 7. 2008 and so there was no justification for granting the prayer and so the application was rejected. Aggrieved with that order this appeal has been filed. Heard learned Counsel for the appellant and learned A. G. A. for the State. As the point involved in this appeal is legal one. I am deciding it on merits at the admission stage.
(3.) LEARNED Counsel for the appellants cited before me a ruling of this Court in Chandra Pal Singh v. State of U. P, 2005 (1) U. P. Cr. R. 687, in which it has been held that where the surety after receipt of the show cause notice produces the accused before the Court, there is no legal necessity to impose the penalty and to direct him to make payment of bond money and the impugned order directing the sureties to make payment of the bail bond amount was set aside by the Court. It was submitted by the learned Counsel for the appellants that in the present case also the appellants had got the accused arrested and got him pro duced in the Court, and so the order imposing the penalty against both of them should have been set aside. There is sufficient force in this contention. There is one more aspect of the case. There is a provision in para 3 of the Section 446 (1), Cr. P. C. for issuing a notice to the sureties after forfeiting the amount of the bail bond under para 1 and 2 of the above sub-section giving them opportunity either to pay the amount or to show cause as to why the amount should not be realised from them. In the present case, the show-cause notice was issued after the order dated 1. 7. 2008 was passed by the Court below. This notice was issued in form No. 48 of Schedule 2 of the Cr. P. C. and a certified copy of this notice has been filed as Annexure-2. In this notice an opportunity was given to the appellants show cause as to why the amount of Rs. 50,000/- which had been forfeited vide order dated 1. 7. 2008 be not recovered from them. Thereaf ter, the appellant appeared before the Court and moved an application on 17. 7. 2008 that they had got the accused arrested, and produced in the Court and so they should be discharged and the recovery should be cancelled.;