NAWAB ALI Vs. STATE OF U P

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned A.G.A. for the respondent and perused the judgment and order dated 31.10.2011 passed by the learned Additional Sessions Judge, Court No. 7, Muzaffarnagar in Criminal Case No. 2/12 pf 2011 whereby a sum of Rs. Thirty Thou-sand has been directed to be recovered as a penalty from the appellant under Section 446 of the Code of Criminal Procedure (in short "the Code").

(2.) Section 446 of the Code inter alia, provides that on proof of forfeiture of a bond, the person bound by the bond is to be served with a notice calling upon him to pay the penalty or to show-cause why it should not be paid, therefore, it was obligatory on the part of the trial Court to provide such opportunity to the appellant before proceeding to recover the penalty. It is also well settled that if in pursuance of the show-cause notice any explanation is furnished, the Court has to give due consideration to such explanation and pass appropriate order in accordance with law. Without doing so, it is not open to the Court to proceed to make recovery straightway immediately after passing of the order for forfeiture of the bail bond or personal bond. The other aspect, which was relevant in the present case, was the appearance of the accused only two days after the order dated 12.9.2011 was passed. This was one of the strongest circumstance in favour of the appellant to press for remission of the penalty but the learned trial Court did not give any consideration thereof. In this view of the aforesaid, the recovery proceedings without providing any opportunity to the appellants to show-cause cannot be upheld.