AYUB Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned Counsel for the appellant and the learned A.G.A. The relief clause of the appeal has been amended.

(2.) THIS appeal under Section 449 Cr. P.C. arises out of the order dated 2 -4 -2005 passed by Special Judge, N.D.P.S. Act, Meerut. The appellant stood surety to the accused Dushyant facing trial in Special Trial No. 565 of 2003. The accused absconded. Therefore, the show -cause notice was sent to the appellant vide order dated 4 -12 -2004. In pursuance to the said show -cause notice he appeared before the Court and took time till 11 -2 -2005 to produce the accused, but failed. As such the warrant of recovery of the bond money in the sum of Rs. 20,000/ - was issued for execution. As such the impugned order dated 2 -4 -2005 was passed directing the appellant to deposit the sum of Rs. 20,000/ -, the bond money. Besides this direction of the Court to deposit the aforesaid sum, an additional order was passed that in case the appellant did not deposit the amount as directed, he would undergo civil imprisonment for four months.

(3.) A perusal of the aforesaid impugned order shows that the order so long as it directs the appellant to deposit the bond money in the sum of Rs. 20,000/ - is wholly correct because the accused had been absconding and is still not traceable. The opportunity given to the appellant to trace the accused also could not produce a positive result. Therefore, there was no occasion for the appellant to have any further justification for not making the payment of the bond money. However, the second apart of the order directing civil imprisonment of the appellant is wholly unjustified. The procedure as provided under Sections 446 (2) and 421 of Cr. P.C. have not been followed by the Court below. The Court is supposed to issue attachment and sale etc. if the fine is not deposited by the person against whom it is levied. This process is executable by the Collector of the district where the property of the fined person situates. In case the property is not such from which the amount of fine levied is recovered, there shall be a report from the Collector and acting thereupon the competent Court recovering the fine shall pass orders for arrest or detention in civil prison as provided in sub -section (2) of Section 446 of the Code. These formalities are to be essentially observed in such cases and the Court has failed in it.