# / v. State Of U.P

- **Citation:** (2009) 2 ILRA 695
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-24
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-state-of-u-p-41427
- **Pages:** 3

## Headnote

Code of Criminal Procedure Section S446-Recovery of the amount of bail
bond-prior to order of recovery no show
cause notice or calling the applicant to
deposit
certain
amount-straightway
recovery order contrary to provision of
section 446-can not sustained.

Held: Para 8

In the instant case, the learned lower
court forfeited the bail bonds furnished
by the appellants, by the impugned order
dated 21.4.2009 but instead of giving
the appellants the notices as required by
section 446 Cr.P.C. either to pay penalty
or to show cause as to why it should not
be paid, straightway issued warrants for
recovery of the amount, which was not
legal and contrary to the import of
section 446 Cr.P.C. It was obligatory on
the learned court to give notices calling
upon the appellants to pay the penalty or
show cause as to why it should not be
paid. Without doing so, it was not open
to the learned lower court to impose
penalty and recover the same. In view of
these
reasons,
the
impugned
order
which has been passed in utter disregard
to the provisions of section 446 Cr.P.C.,
can not be sustained.

## Text

2 All] Shiv Pujan Sahani V. State of U.P. and others

695

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2009

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Appeal No. - 3838 of 2009

Raj Pal Singh and another

...Applicants./Appellants
Versus
State Of U.P.

...Opposite Party

Counsel for the Appellants:
A.K. Mishra

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure Section S446-Recovery of the amount of bail
bond-prior to order of recovery no show
cause notice or calling the applicant to
deposit
certain
amount-straightway
recovery order contrary to provision of
section 446-can not sustained.

Held: Para 8

In the instant case, the learned lower
court forfeited the bail bonds furnished
by the appellants, by the impugned order
dated 21.4.2009 but instead of giving
the appellants the notices as required by
section 446 Cr.P.C. either to pay penalty
or to show cause as to why it should not
be paid, straightway issued warrants for
recovery of the amount, which was not
legal and contrary to the import of
section 446 Cr.P.C. It was obligatory on
the learned court to give notices calling
upon the appellants to pay the penalty or
show cause as to why it should not be
paid. Without doing so, it was not open
to the learned lower court to impose
penalty and recover the same. In view of
these
reasons,
the
impugned
order
which has been passed in utter disregard
to the provisions of section 446 Cr.P.C.,
can not be sustained.
(Delivered by Hon'ble Shri Kant Tripathi, J.)

The appellants Raj Pal Singh and Raj
Kumar, who stood as sureties for the
accused Fauran Singh in the sessions trial
no. 173 of 2008 pending in the court of
Additional Sessions Judge, Fast Track
Court No.1, Firozabad, have preferred this
appeal against the order dated 21.4.2009
passed by the learned Additional Sessions
Judge, whereby the learned Additional
Sessions Judge forfeited the bail bonds
furnished by the appellants and issued
warrants for recovery of the amount of
their bail bonds.

2. With the consent of the learned
counsel for the appellant and the learned
A.G.A. the instant appeal is being finally
disposed of at the stage of admission.

3. Heard the learned counsel for the
appellants and the learned AGA and
perused the lower court record.

4. The learned counsel for the
appellants submitted that appellants were
not given any notice as required by
section 446 Cr.P.C. after forfeiture of
their bail bonds and as such the recovery
proceeding is illegal. It was further
submitted that the accused Fauran Singh
had been appearing in the court concerned
and had lastly appeared on 13.2.2009 but
remained absent on 20.2.2009 and also on
subsequent dates. The accused Fauran
Singh, however, appeared on 15.5.2009
and moved application for recall of the
warrant
but
the
learned
Additional
Sessions Judge rejected the application
for recall of warrant and committed the
accused to custody and since then the
696 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

accused Fauran Singh is in jail. The
learned counsel further submitted that
when the accused had appeared before the
court concerned on 15.5.2009, there was
no justification for the learned Additional
Sessions Judge to proceed with the
recovery against the appellants.

5. The learned AGA, on the other
hand, submitted that when the accused
absented from appearing in the court, the
learned Additional Sessions Judge was
justified in directing for making the
recovery through warrants.

6. A perusal of the order dated
21.4.2009
reveals
that
the
learned
Additional Sessions Judge had issued
notices to the appellants before passing
the order dated 21.4.2009 but neither they
appeared nor moved any application
consequently
the
learned
Additional
Sessions Judge forfeited the bail bonds
furnished by the appellants and directed
for recovery of the amount of the bail
bonds. It appears that the bail bonds of the
appellants were not forfeited prior to
21.4.2009 and as such the notices served
on the appellants prior to 21.4.2009, can
not
be
regarded
as
notices
as
contemplated by section 446 Cr.P.C.

7. The law in this regard is well
settled. As and when bail bond filed by
any surety is forfeited, it is incumbent on
the court forfeiting the bail bond to give a
notice to the surety whose bail bond has
been forfeited, calling upon him either to
pay penalty or to show cause as to why it
should not be paid. If he pays the penalty
in pursuance of the notice, the matter
ends. If he does not pay the penalty and
offers
some
explanations
showing
reasonable causes of the non appearance
of the accused, the court has to consider
the causes and pass a reasoned order
thereon. If the cause shown is not
sufficient the amount of the penalty
should be determined by the court and if
the penalty so determined remains unpaid,
the court has power to make recovery of
the penalty as fine. If the person to whom
the show cause notice is served, offers
sufficient causes, the court has power to
discharge the notice and remit the penalty.
The order remitting the penalty wholly or
partly must be based on reasons to be
recorded by the court. The provisions of
section 446(3) Cr.P.C. are very clear in
this regard.

8. In the instant case, the learned
lower court forfeited the bail bonds
furnished by the appellants, by the
impugned order dated 21.4.2009 but
instead of giving the appellants the
notices as required by section 446 Cr.P.C.
either to pay penalty or to show cause as
to why it should not be paid, straightway
issued warrants for recovery of the
amount, which was not legal and contrary
to the import of section 446 Cr.P.C. It was
obligatory on the learned court to give
notices calling upon the appellants to pay
the penalty or show cause as to why it
should not be paid. Without doing so, it
was not open to the learned lower court to
impose penalty and recover the same. In
view of these reasons, the impugned order
which has been passed in utter disregard
to the provisions of section 446 Cr.P.C.,
can not be sustained.

9. The learned lower court should
also give due consideration to the fact that
the accused has not only appeared but is
also in the custody of the court before
passing any order under section 446
Cr.P.C.
2 All] Raj Pal Singh and another V. State of U.P.

697
10. The appeal is allowed. The
impugned order dated 21.4.2009 and
subsequent proceedings in pursuance
thereof are set aside. The learned
Additional Sessions Judge is directed to
reconsider the matter and pass appropriate
order
afresh
in
the
light
of
the
observations made here in before, after
providing a reasonable opportunity to the
appellants to show cause as contemplated
by section 446 Cr.P.C.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2009

BEFORE
THE HON'BLE S.K. GUPTA, J.

Civil Misc. Writ Petition No. 3502 of 1994

Jai Prakash Singh

...Petitioner
Versus
District Inspector of Schools, Jaunpur
and another

 ...Respondents

Counsel for the Petition:
Sri R.N. Singh
Sri G.K. Singh
Sri S.N. Singh
Sri V.K. Singh

Counsel for the Respondents:
Sri A.K. Sinha
Sri P.C. Shukla
Sri I.R. Singh
S.C.

U.P.
Secondary
Education
Service
Selection
Board
(IInd
Removal
of
Difficulties
Order)
1981-Adhoc
appointment or short term vacancy has
no right to continue after conversion of
short term vacancy into substantive
vacancy in view of full Bench case of
Pramila Misra.

Held: Para 22

However, as already held herein above,
after the retirement of Raj Bahadur
Singh, short term vacancy on the post of
lecturer in History has been converted
into a substantive vacancy on 30-62003. therefore, the petitioner cannot
claim any right to continue after 30-62003 in view of the aforementioned Full
Bench decision of this Court
Case law discussed:
(1997)2 UPLBEC 1329.

(Delivered by Hon'ble S.K. Gupta, J.)

1. This writ petition had been filed
inter- alia for the following reliefs:

(i) Issue a suitable writ, order or
direction, in the nature of CERTIORARI
quashing the order dated 18-10-1993

(ii) To issue a suitable writ, order or
direction in the nature of mandamus
directing
the
respondents
to
make
payment of salary to the petitioner
regularly along-with all arrears on that
account"

2. The brief facts enumerated in the
present writ petition are as follows:

3.

Panchsheel
Inter
College
Fatehganj, Jaunpur, (hereinafter referred
to as "institution") is a duly recognized
institution and is governed by the
provision of U.P. Secondary Education
Services
Commission
and
Selection
Board Act, 1982 and the Rules framed
thereunder. The post of Principal fell
vacant in the institution on 30-6-1993 on
account of retirement of one Sri Raj
Bahadur Singh.

4. The committee of management
(in short "management") had already