Shrikant Tripathi - (1.) HEARD Sri Manoj Kumar Srivastava, the learned counsel for the appellant Jitendra and the learned A.G.A. and perused the impugned order.
(2.) THE appellant Jitendra has preferred this appeal against the order dated 23.1.2009, passed by the learned Vth Additional Sessions Judge/Special Judge appointed under the U. P. Gangsters and Anti Social Activities Act, Bareilly, in Criminal Case No. 120 of 2006, whereby the learned Special Judge has forfeited the personal bond of the appellant and directed for recovery of Rs. 50,000 as penalty and also released him on bail on his furnishing a personal bond of Rs. 50,000 and two fresh sureties each in the like amount and also on depositing the penalty of Rs. 50,000. 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. The relevant facts are that the appellant Jitendra is being tried in regard to an offence under Section 2/3 of the U. P. Gangsters and Anti Social Activities (Prevention) Act, 1986 in the Court of learned Special Judge/A.S.J. Vth, Bareilly. The appellant failed to appear in the Court concerned from 15.3.2007, consequently a non-bailable warrant for his arrest was issued. The processes under Section 82/83, Cr. P.C. were also issued. It appears that the appellant was in the custody from 6.12.2008. The appellant moved an application for bail which was heard and disposed of by the learned Special Judge on 16.10.2006. The learned Special Judge forfeited the appellant's personal bond and imposed upon him Rs. 50,000 as penalty and directed that he be released on his furnishing a personal bond of Rs. 50,000 and two fresh sureties each in the like amount and also on his depositing the penalty of Rs. 50,000.
(3.) THE learned counsel for the appellant submitted that the appellant was not given any show-cause notice after forfeiture of his personal bond and as such imposition of penalty was not proper. It was further submitted that the learned lower court has committed gross error of law in releasing the appellant on bail on his depositing cash amount of Rs. 50,000 as penalty. In my opinion, these two submissions have substance. When the appellant committed breach in appearing in the Court concerned, the personal bond submitted by him was liable to be forfeited but imposition of penalty and its recovery without giving any opportunity of showing cause to the appellant was not proper. The law in this regard is well-settled. As and when any bond filed for appearance is forfeited, it is incumbent on the Court forfeiting the bond to give a notice to the person whose bond has been forfeited, calling upon him either to pay penalty or to show-cause as to 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 his non-appearance, 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. The provisions of Section 441, Cr. P.C. are very clear in this regard.;