Shri Kant Tripathi, J. - (1.) HEARD Sri Ajay Tiwari, the learned counsel for the appellant and the learned A.G.A. and perused the impugned order.
(2.) THE appellant Chet Ram has preferred this appeal against the order dated 8.5.2009, passed by the learned Special Judge Gangster Act/A.S.J. Vth, Bareilly in Criminal Case No. 160 of 2000, whereby the learned Special Judge has issued a recovery warrant against the appellant for recovery of Rs. 25,000 being the amount of penalty on account of forfeiture of the personal bond of the appellant. With the consent of the learned counsel for the appellant and the learned A.G.A. the appeal is being finally disposed of at the stage of admission. It may be mentioned that the appellant Chet Ram is an accused in the Criminal Case No. 160 of 2000, State v. Babu and others, pending before the lower court. The case of co-accused Nizamuddin was decided on 25.5.2002 but the cases of remaining three accused namely, Babu, appellant Chet Ram and Shafiq could not be decided due to their absence. The appellant Chet Ram was not turning up and as such the learned Special Judge issued a non-bailable warrant for his arrest and also issued processes under Section 82/83, Cr. P.C. The properties of the appellant were attached on 11.4.2008 in pursuance of the attachment order issued under Section 83, Cr. P.C. Even after that attachment the appellant did not turn up. Consequently the learned Special Judge forfeited the appellant's personal bond and directed for issue of a warrant for recovery of Rs. 25,000 as penalty from the appellant and further directed for issue of a non-bailable warrant and processes under Section 82/83, Cr. P.C. against the appellant.
(3.) THE learned counsel for the appellant submitted that the appellant was in jail in connection with some other case and as such could not appear before the learned Special Judge. It was further submitted that the learned Special Judge has not given any show cause notice under Section 446, Cr. P.C. to the appellant before issuing the warrant for recovery of the penalty of Rs. 25,000. Issue of the recovery warrant without giving a show cause notice to the appellant was invalid. THE learned counsel further submitted that the appellant would appear before the Special Judge within the time allowed by this Court and to move appropriate application before the learned Special Judge for modifying the order issuing the recovery warrant. It was further submitted that the impugned order be modified accordingly. In my opinion, issue of a show cause notice under Section 446, Cr. P.C. to the person, whose bond has been forfeited before issuing recovery warrant, is mandatory. It is the duty of the Court to give a notice to the person whose bond is or has been forfeited, calling upon him either to pay the penalty or to show cause why it should not be paid. If he pays the penalty in pursuance of the notice, the matter ends. If he does not pay the penalty and offers some explanations showing reasonable causes of non- appearance of the accused, the Court has to consider the causes and pass a reasoned order thereon. If the cause shown is not sufficient the amount of the penalty should be determined by the Court and if the penalty so determined remains unpaid, the Court has power to make recovery of the penalty as fine. If the person to whom the show cause notice is served, offers sufficient causes, the Court has power to discharge the notice and remit the penalty. The order remitting the penalty wholly or partly must be based on reasons to be recorded by the Court.;