- (1.) THIS Criminal Misc. Appeal is against the order dated May 3, 1989 of the learned Sessions Judge, Sriganganagar.
(2.) UNDER the aforesaid order the learned Sessions Judge has ordered that the amount of Rs, 5000/- be recovered by way of penalty and it is also ordered that on the failure of the appellant to deposite the aforesaid amount of penalty the appellant shall be sent to civil jail for a period of six months. The facts, in brief, are that in Sessions Case No. 40/89 the appellant as well as Vishwanath had furnished the bail bonds in the sum of Rs. 5,000/- each. The appellant and the other surety had undertaken that the accused Jagdish @ Suresh Kumar s/o. Sonewal shall appear in the court on March 8, 1989 and on March 9, 1989 and on subsequent dates. On April 19, 1989, accused Jagdish & Suresh Kumar, did not appear. The learned Sessions Judge being satisfied that the bonds had been forfeited, issued a show cause notice to the appellant as to why the amount of bond be not recovered. It may be stated that on April 14, 1989 the appellant had filed an application for exempting the appearance of the accused Jagdish @ Sureshkumar. But the learned court had dismissed the application on the ground that it was not supported by any proof. It may be stated that appellant could not produce the accused Jagdish - Sureshkumar even up till now and the accused Jagdish is still absconding. The appellant could not show any cause what to say of any valid cause for the non-appearance of the accused Jagdish on April 19, 1989. The learned Sessions Judge therefore, within his right to order that the entire amount of Rs. 5,000/-should be recovered by way of penalty. In my opinion, the learned Sessions Judge could not have ordered that accused be sent to civil jail without following the procedure prescribed u/s. 421 Cr. P. C. for recovery of the penalty as fine. The order that the appellant who was the surety shall be sent to civil jail for six months on failure to deposit the amount of penalty could not be made. A bare reading of s. 446 (2) will show that if sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were fine imposed by it under the Code. Where such penalty is not paid and cannot be recovered in the manner aforesaid, i. e. u/s 421, a person so bound to pay the penalty may be sent to imprisonment in a civil jail for a period of six months. It will, therefore, be clear that before the Court can order the person bound as surety that he should be sent to imprisonment in a civil jail, the two conditions are to be satisfied, the first is the penalty is not paid and the second is it cannot be recovered in the manner provided for recovery of fine imposed under Cr. P. C. No doubt, the appellant failed to pay the amount of penalty, but then the learned court must have first proceeded to make efforts to recover the penalty as fine u/s 421 Cr. P. C. and only if he fails to deposit the same then alone the orders for sending him to civil jail would have been ordered.
(3.) CONSEQUENTLY, I hereby partly allowed this appeal, while maintaining the order of the learned Sessions Judge so far as he has ordered that the amount of Rs. 5000/- be recovered by way of penalty. But I hereby set aside the order of the learned Sessions Judge that on failure of payment of fine, the appellant shall suffer imprisonment in civil jail for a term of six months, I hereby direct that the learned judge shall first proceed to recover the amount and thereafter, if necessary, by separate order the appellant can be sent to imprisonment in civil Jail for a term which may extend to six months. .;