DEEPAK KUMAR Vs. STATE OF C.G.

JUDGEMENT

(1.) In this criminal appeal preferred under Sec. 449 of the CrPC, the appellant is challenging order dtd. 19/4/2022 (Annexure A/1), by which the Sessions Judge, Dhamtari, C.G. has declined to accept the cause shown by the appellant herein for not producing the accused - Shailesh Vijay Rathore before the trial Court on the date fixed for hearing and directed for the issuance of attachment warrant against the appellant.

(2.) The case of the prosecution, in a nutshell, is that one Shailesh Vijay Rathore S/o Vijay Rathore was apprehended in connection with Crime No.29/2018, Police Station - Borai, District - Dhamtari for offences under Sec. 20(b) (ii)(c) of the NDPS Act, 1985 and Sec. 420 of the IPC, 1860, for which Special Criminal Case (NDPS) No.89/18 (State v. Rakesh Surkar and Another) is pending before the learned trial Court. When the accused - Shailesh Vijay Rathore was released on bail vide order of this Court dtd. 4/4/2019 passed in MCRC No.1902/2019, the appellant herein stood as surety for an amount of Rs.1,00,000.00. However, the accused- Shailesh Vijay Rathore after being released on bail, did not comply with the conditions of the bail bond and failed to appear before the learned trial Court when the case was listed. Consequently, the bail bond of the accused was forfeited on 27/2/2020 and, on the same day, separate proceedings under Sec. 446 of the CrPC were initiated against the appellant herein and notice was issued to the appellant to show cause as to why not the amount of bail bond of Rs.1,00,000.00 be recovered from him and the next date of hearing was fixed on 3/4/2020. Thereafter, on account of COVID protocol, the case was adjourned till 7/9/2021, then again on 7/9/2021, show cause notice was issued to the appellant and the next date of hearing was fixed on 9/11/2021. But, even after the service of notice, the appellant did not appear before the learned trial Court on 9/11/2021, consequently, the attachment warrant was directed to be issued against the appellant for attachment of his movable properties. Thereafter, on 5/4/2022, the appellant appeared before the learned trial Court and submitted his reply stating that he had made every effort to find out the whereabouts of the absconding accused - Shailendra Vijay Rathore but could not ensure his presence before the learned trial Court and that, he is a poor person and is unable to pay the amount of Rs.1,00,000.00 and, therefore, the attachment warrant issued against him may be withdrawn and he be freed from the bail bond. However, the learned trial Court did not accept the explanation of the appellant in reply to the show cause notice and vide impugned order dtd. 19/4/2022, proceeded to call for the report of the attachment warrant, against which this appeal has been preferred.

(3.) Ms. Aditi Singhvi, learned counsel for the appellant would submit that though the show cause notice under Sec. 446(1) of the CrPC has been issued to the appellant to show cause as to why the penalty should not be paid, but no order of penalty has been passed and, straightway, the order of recovery has been passed under Sec. 446(2) of the CrPC, which is totally uncalled for and is liable to be set aside.