BRUNDABAN JENA Vs. STATE

JUDGEMENT

(1.) Appellants assail correctness of order passed by learned Addl. Sessions Judge, Second Court, Cuttack, directing appellants' imprisonment in civil jail for a period of two months. He also directed the Collector, Cuttack to take steps under the Orissa Public Demands Recovery Act (in short the 'Act') for realisation of penalty of Rs. 25,000/ - each from out of the immovable properties of the present appellants, Learned Additional Sessions Judge purportedly acted in exercise of powers Under Section 446 (2) of the Criminal Procedure Code, 1973 (in short the 'Code') -Proviso to Sub -section (2) of Section 446 of the Code is relevant for the purpose of adjudication of this case. It provides that where penalty imposed is not paid and cannot be recovered in the manner prescribed in Sub -section (2) of Section 446, the person bounded as surely shall be liable by order of Court ordering recovery of penalty, to imprisonment in civil jail which may extend upto six months. A conspectus of the provision makes it abundantly clear that surety can be imprisoned in a civil jail, if amount imposed as penalty cannot be recovered in the manner prescribed in Sub -section (2) of Section 446. Here, the impugned order itself makes it clear that learned Addl. Sessions Judge directed Collector, Cuttack to realise the amount of Rs. 25,000/ - each from the immovable properties of present appellants. Unless there is a conclusion arrived at, that the amount cannot be recovered in the manner as Indicated in Sub -section (2) of Section 446, direction to send surety to civil Jail cannot be maintained. Therefore, direction of learned Addl. Sessions. Judge, relating to imprisonment of appellants in civil jail for a period of two months is vacated for the present. The residuary part of the order shall operate If there is failure to recover amount as directed by learned Addl. Sessions Judge, requisite steps as provided in the proviso to Sub -section, (2) of Section 446 of the Code are available to be taken. Criminal Appeal is disposed of accordingly.