- (1.) R. K. Rastogi, J. This appeal against the order dated 5. 12. 2007 passed against the appellant Munshi Lal under section 446 Cr. P. C. has been filed after ex piry of the time fixed for filing the appeal. There is delay of 88 days in filing the same as reported by the Stamp Reporter. The appellant has prayed for condonation of delay by moving an application under sec tion 5 of the Limitation Act supported by his own affidavit in which it has been stated that he is an old man aged about 65 years and is suffering from old age diseases and his financial position was not good to arrange for an amount to file the appeal and to pay the counsel's fees etc. Hence the appeal could not be filed in time and a prayer has been made to condone the de-lay.
(2.) LEARNED AGA was granted time to file counter affidavit but in spite of several opportunities provided to him, he has not filed any counter affidavits. As such there is no reason to disbelieve the assertions made in the affidavit of the applicant. I, therefore, believe assertions made in his affidavit and hold that he has made a good case for condonation of delay in filing the appeal. The application under section 5 of the Limitation Act is allowed and delay in filing the appeal is condoned. Let a regular appeal number be allotted to this defective appeal by the of fice. Heard on the merits of the appeal with the consent of the parties. The appel lant had stood a surety for the accused Kamal Singh in Session Trial No. 546/06 State v. Kamal Singh pending before Addi tional Sessions Judge-II, Mathura. Since the accused did not appear in that case, the bail bond filed by the appellant was forfeited vide order dated 5. 12. 2007 and vide the same order the recovery warrant was also issued against the appellant. Aggrieved with that order, the appellant filed this ap peal.
(3.) LEARNED Counsel for the appellant submitted before me that appellant Kamal Singh has appeared before the Trial Court on 28. 2. 2008. It was also submitted that after passing an order under section 446 Cr. P. C. forfeiting the amount of bail bond, the Court has first to issue a notice as provided in para 3 of section 446 (1) Cr. P. C. He submitted that in the present case no such notice has been issued after forfeiture of the amount of bail bond and the Court vide impugned order dated 5. 12. 2007 has or dered for forfeiture of the amount of bail bond and also for issuing recovery warrant and such a composite order of the Trial Court is illegal. It appears from perusal of the or der sheet of the Trial Court that a notice was issued to the appellant Kamal Singh prior to passing of the impugned order of forfeiture, but that notice cannot be substi tuted for the notice which is to be issued under para 3 of section 446 (1) Cr. P. C. after passing the order for forfeiture of the amount.;