IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL STAY APPLICATION NO.490 of 2010 In CRIMINAL APPEAL NO.103 OF 2010 1. Om Prakash Singh 2. Ram Kishor ……… Appellants Versus State of Uttarakhand ..…… Respondent Dated: May 18, 2010 Sri Lalit Sharma, Advocate for the appellants Sri Amit Bhatt, Addl. GA for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants u/s 449 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the orders dated 17.4.2010 and 12.5.2010 passed by Additional Sessions Judge/Ist F.T.C., Haldwani, District Nainital in Sessions Trial No.28A/2009, State Vs. Chandan Kumar. 2. Heard learned counsel for the parties and perused the material available on file. 3. Brief facts of the case are that appellants Om Prakash Singh and Ram Kishor were the sureties of Chandan Kumar, who was the accused in Crime No.892/2007 under Sections 307/324/323 IPC. When accused Chandan Kumar did not appear in the court on the dates fixed, then vide order dated 17.4.2010 the court below issued non-bailable warrant against him and since the appellants were the sureties, therefore, notices under Section 446 Cr.P.C. were also issued to them. The personal bond of the accused were already been forfeited by the court vide order dated 16.3.2010. But even after that the accused did not appear before the court below and the appellants, who were the sureties of the accused, also failed to produce the accused despite notice u/s 446 Cr.P.C. issued to them. The appellants could not show any plausible cause for the non-production of the accused in the court. Therefore, learned Addl. Sessions Judge/Ist F.T.C., Haldwani, District Nainital vide his order dated 12.5.2010 forfeited the surety bonds of the appellants and issued recovery warrant against them. Feeling aggrieved by the said orders dated 17.4.2010 and 12.5.2010, the appellants have preferred the present appeal. 4. Learned counsel for the appellants submitted that the procedure prescribed u/s 446 Cr.P.C. has not been followed by learned Addl. Sessions Judge at the time of passing the impugned orders. Contrary to this, learned Addl. GA argued that impugned orders has been passed as per law. Section 446 of Cr.P.C. is relevant to mention here which reads as under: - 446. Procedure when bond has been forfeited - (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited. or where in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited. the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Explanation – A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: [Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.] (3) The Court may [after recording its reasons for doing so], remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved. 5. As per the procedure laid down in sub-section (1) of Section 446 Cr.P.C. the court shall record the grounds of such proof and make a call upon any person bound by such bond or to show cause why it should not be paid. Sub Section (2) of Section 446 provides that if sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. 6. From a perusal of the orders dated 17.4.2010 and 12.5.2010, it emerges out that the orders has been passed as per the provisions of Section 446 Cr.P.C. and the said orders are justified as per law. 7. For the reasons recorded above, I do not find any illegality and irregularity in the orders dated 17.4.2010 and 12.5.2010 passed by Addl. District Judge/Ist F.T.C., Haldwani, District Nainital and the same requires no interference by this Court. 8. Accordingly, the appeal being devoid of any merits is hereby dismissed. (Stay Application No.490 of 2010 also stands dismissed). (Dharam Veer, J.) 18.5.2010 RG