RAM PRASAD BHAGAT Vs. STATE OF U P

JUDGEMENT

(1.) J. C. Gupta, J. Heard appellants Counsel and the learned A. G. A. for the State.

(2.) IT appears that applicant No. 3 was facing trial in Session Trial No. 347 of 1998 under Section 307 I. P. C. On 3-5-1999 he did not appear in Court, therefore, the trial Court issued non- bailable warrant against him fixing 11-5-1999 for his appearance. On this date also accused Ram Daras Yadava did not appear nor any application for exemption of his personal appearance was made. The Court therefore, issued fresh non-bailable warrant against the ac cused and simultaneously forfeited per sonal bond and sureties bonds executed by appellant Nos. 1 and 2. IT further appears that thereafter the accused appeared in Court and was acquitted. An application was moved on behalf of the appellants before the trial Court for recalling the order dated 11-5-1999 whereby the bonds were forfeited. This application has been rejdcted by the trial Court on the ground that it has no power to recall the order dated 11-5-1999 as the same has become final on account of non-filing of appeal. Learned Counsel for the applicant in revision submitted that the lower Court while passing the impugned order itself has come to the conclusion that the proce dure laid down in Section 446 Cr. P. C. was not followed before forfeiting the bail bonds and personal bonds. A perusal of the provisions of Section 446 Cr. P. C. will show that before an order of forfeiture is made a show-cause notice has to be given and again before passing an order bf im position of penalty the person concerned is required to pay the penalty or to show-cause. Sub-section (3) of Section 446 they lays down that the Court concerned can remit any portion of the penalty. If the trial Court found itself unable to recall the order dated 11-5-1999, in the cir cumstances it should have considered whether it was a fit case for remission of any portion of the penalty. Since in the present accused later on appeared and has been acquitted, in the interest of jus tice it is ordered that the entire amount of penalty is remitted.