PRABHU NAI Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed by the surety prabhu Nai under Section 449 of Criminal Procedure Code (in short "cr. P. C. "), being aggrieved by the order dated 21. 10. 2002, passed by First Additional Sessions Judge, Guna in M. J. C. No. 155/2002, whereby the direction to recover the sum of the surety Rs. 50,000 from the appellant has been given.

(2.) THE facts giving rise to this appeal in short are that in compliance of some bail order of accused Vijya Kapse W/o sambharao, R/o Choudaran Colony, Guna the present appellant had furnished the surety of Rs. 50,000 for her on 25. 11. 2001, such surety was given to keep present such accused regularly in S. T. No. 19/2002 pending in the aforesaid Court. Subsequent to furnishing such surety aforesaid accused on account of her illness could not appear in such ST on 11. 10. 2002. Although the application for giving exemption from appearance was filed by his counsel under Section 317 of Cr. P. C. The papers regarding illness of accused were also annexed with that. However, on consideration such application was dismissed and the direction for initiating the proceeding to recover the aforesaid sum Rs. 50,000 from the appellant was given. In compliance of such direction a show cause notice under Section 446 of cr. P. C. was issued against the appellant, on receiving the same, it was replied alongwith the papers regarding treatment of the accused showing that due to sufficient cause accused could not appear on the date of the appearance, on which the direction for recovery of aforesaid sum was given. Such reply was not found satisfactory and the direction to recover such amount of surety was given. Being aggrieved by such order, the appellant has come with this appeal.

(3.) SHRI T. C. Bansal, learned appearing counsel of the appellant assailed the impugned order saying that the trial court has failed to consider the reply of the appellant in accordance with the provision of Section 446 of Cr. P. C. In view of the reply of show cause notice and annexed papers, the trial court ought to have given an opportunity to the appellant to adduce the evidence before the court. In any case, without extending the opportunity for adducing the evidence to the appellant his objections have been dismissed under wrong premises. With these submissions, he prayed for allowing the appeal and in alternative also prayed for remanding back the matter for afresh disposal in accordance with law by extending the sufficient opportunity to lead the evidence to the appellant.