DUKH HARAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This appeal under Section 449, Cr. P.C. has been preferred against the order dated 27-7-1984 passed by the 1st Additional Sessions Judge, Faizabad in Case No.6 of 1984 directing imprisonment of the appellant for three months and recovery of Rs. 5,000/- as penalty from the appellant for not producing Ganga Ram for whom he had stood surety in a case under Section 395, Indian Penal Code. It was further directed that a warrant of realisation of Rs. 5,000/- was to be issued against the opposite party and would be realised as land revenue and the order was directed to be sent to the District Magistrate, Faizabad for execution within three months. The order further mentioned that non-bailable warrant should be issued against the appellant executable within a fortnight. The order further said that appellant shall for recovery of the penalty, undergo three months imprisonment in civil jail.

(2.) Mr. S.I. Ahmad learned Counsel appearing on behalf of the appellant has challenged the said order on the ground that the Court below ought not to have directed that the appellant shall undergo three months imprisonment in a civil jail even if the amount of penalty had been paid or had been realised from the appellant.

(3.) Section 446. Cr. P.C. contemplates that when the bond of a person executing the bond has been forfeited then he should be called upon to pay the penalty or to show cause why the penalty should not be paid. It is only when the cause shown is not sufficient and the person fails to pay the amount of penalty that an order for recovery of the penalty-amount is contemplated as if it was a fine imposed under the Code. Proviso to Section 446(2), Cr. P.C. further contemplates that where such penalty is not paid and cannot be recovered then the person has to be imprisoned in civil jail for a term not to exceed six months.