Shashi Kant vs State
1991 Latest Caselaw 84 Del

JUDGMENT

V.B. Bansal, J.

(1) Shashi Kant has filed this appeal under Section 449 of the Code of Criminal Procedure against the order dated 23rd October 1990 of an Additional Sessions Judge, Delhi. Vide impugned order the learned Addl Sessions Judge has forfeited the amount of the bail bond and imposed penalty of Rs. 10,000.00 on the appellant. The appellant has also been ordered to undergo civil imprisonment for six months on account of his inability to make payment of the amount of the bail bond.

(2) The appellant is stated to have stood surety for an accused in caw F.I.R. No. 178 of 1990 of Police Station Kamla Market, New Delhi in the sum ofRs.10,000.00 and undertook to pay the said amount in case of default of appearance of the said accused. Since the accused did not appear, the appellant was asked to be present in Court and thereafter the impugned order was passed

(3) I have heard the learned counsel for the appellant. It has bee stated by the counsel for appellant that there has been a complete violation of the provisions contained in Section 446 of the Code of Criminal Procedure account of which the order is bad and is liable to be quashed. There can possibly be no dispute that after the order of forfeiture of the bail bond it was incumbent upon the learned Addl. Sessions Judge to have issued a notice to the appellant so as to enable him to file reply. The procedure has, however been short-circuited and by one order the Ld. Addl. Sessions Judge has chose to forfeit the bail bond and after imposing full penalty of Rs. 10,000.00 he has been ordered to undergo 6 months imprisonment, which is the maximum period prescribed for civil imprisonment in sub-sec. (2) of Section 446 Criminal Procedure Code There is, thus non-observance of the procedure on account of which the order cannot be sustained.

(4) In the instant case the appellant was sent to Jail on 23rd October 1990 and, thus, he has been in custody for over three months. In these circumstances I am clearly of the view that, it would, rather be an abuse of the process of law if he is again asked to face the proceedings for forfeiture of the amount of penalty.

(5) The appeal is accepted. The impugned order is quashed The appellant shall be released, if not, required in any other case.