VIJAY KUMAR VERMA, J. - (1.) "Whether condition to deposit the amount of earlier executed personal bond can be imposed at the time of granting fresh bail, is the main point that falls for consideration in this bail application moved under sec­tion 439(i)(b) of the Code of Criminal Pro­cedure (in short, 'the Cr.P.C), in which it is prayed that condition imposed by the Spe­cial Judge (Gangster Act) Bareilly in case No. 64 of-2009, arising out of case crime No. 397 of 2003, under sections 2/3, U.P. Gangster & Anti Social Activities (Prevention) Act, 1986 (in short 'the Gang­ster Act"), for depositing Rs. 50,000/- in Court as penalty be set aside.
(2.) I have heard arguments of Sri Sanjiv Kumar Gupta, Advocate appearing for the applicant and AGA for the State. From the impugned order (Annexure-2) it is revealed that the appli­cant Pappu and Ganga Singh were accused in the FIR lodged on 22.11.2003 at P.S. Sahaswan, District Budaun at case Crime No. 397 of 2003, under section 2/3 Gangster Act. After investigation, charge-sheet was filed in the Court of Special Judge (Gangster Act) Barielly, where case No. 64 of 2009 was registered against the accused persons. It appears that the applicant Pappu became absent on 23.2.2005 and hence non-bailable warrant was issued against him and when he did not appear, process under section 82/83 Cr.P.C. was issued and notices were also issued to his sureties. From the impugned order, it is further revealed that vide order dated 9.5.2007 personal bond of the accused and surety bonds of the sureties were forfeited and warrant for recovery to realize the amount of personal and surety bonds were issued. An order was passed again on 28.2.2009 to realize the amount of personal bond from the accused Pappu. Thereafter, the accused-applicant Pappu was arrested on 6.4.2009 and when application for bail was moved on his behalf, the Court below passed the impugned order dated 30.4.2009, whereby the applicant was re­leased on bail on his executing a personal bond for Rs. 80,000/- and furnishing two sureties each in the like amount. Simulta­neously, a condition was imposed in the impugned order to deposit Rs. 50,000/- by the applicant in Court as penalty. The ap­plicant has approached this Court by means of this application to set-aside the condition of depositing Rs. 50,000/-.
(3.) THE main submission made by learned Counsel for the applicant was that at the time of granting fresh bail to the applicant, the Court below could not im­pose the condition to deposit the amount of earlier executed personal bond without following the procedure provided under section 446 Cr.P.C. and hence the condition imposed by the Court below in the im­pugned order for depositing Rs. 50,000/-by the applicant as penalty being wholly illegal and onerous deserves to be set-aside. The contention of the learned Coun­sel was that the amount of earlier execution personal bond cannot be recovered as penalty without issuing notice to the ac­cused and since in present case, no notice was issued by the Court below to the appli­cant to show cause as required under sec­tion 446 Cr.P.C., hence the order passed by the Court below to realize the amount of personal bond from the applicant was wholly illegal, as at the time of granting bail to the applicant, condition to deposit Rs. 50,000/- as penalty could not be im­posed.;