Munshi Lal vs State of U.P.

R.K. Rastogi, J.—This appeal against the order dated 5.12.07 passed against the Appellant Munshi Lal u/s 446, Cr. P.C. has been filed after expiry of the time fixed for filing the appeal. There is delay of 88 days in filing the same as reported by the Stamp Reporter. The Appellant has prayed for condonation of delay by moving an application u/s 5 of the Limitation Act supported by his own affidavit in which it has been stated that he is an old man aged about 65 years and is suffering from old age diseases and his financial position was not good to arrange for an amount to file the appeal and to pay the counsel''s fees etc. Hence, the appeal could not be filed in time and a prayer has been made to condone the delay.

Learned A.G.A. was granted time to file counter-affidavit but in spite of several opportunities provided to him, he has not filed any counter-affidavit. As such there is no reason to disbelieve the assertions made in the affidavit of the applicant. I, therefore, believe assertions made in his affidavit, and hold that he has made a good case for condonation of delay in filing the appeal. The application u/s 5 of the Limitation Act is allowed, and delay in filing the appeal is condoned.

Let a regular appeal number be allotted to this defective appeal by the office.

Heard on the merits of the appeal with the consent of the parties. The Appellant had stood a surety for the accused Kamal Singh in Session Trial No. 546/06, State v. Kamal Singh Session Trial No. 546/06, pending before Additional Sessions Judge-II, Matura. Since the accused did not appear in that case, the bail bond filed by the Appellant was forfeited vide order dated 5.12.07 and vide the same order the recovery warrant was also issued against the Appellant. Aggrieved with that order, the Appellant filed this appeal.

Learned Counsel for the Appellant submitted before me that Appellant Kamal Singh has appeared before the trial court on 28.2.08. It was also submitted that after passing an order u/s 446, Cr. P.C. forfeiting the amount of bail bond, the Court has first to issue a notice as provided in para 3 of Section 446 (1), Cr. P.C. He submitted that in the present case no such notice has been issued after forfeiture on the amount of bail bond and the Court vide impugned order dated 5.12.07 has ordered for forfeiture of the amount of bail bond and also for issuing recovery warrant and such a composite order of the trial court is illegal.

It appears from perusal of the order sheet of the trial court that a notice was issued to the Appellant Kamal Singh prior to passing of the impugned order of forfeiture, but that notice cannot be substituted for the notice which is to be issued under para 3 of Section 446 (1), Cr. P.C. after passing the order for forfeiture of the amount.

The appeal is, therefore, allowed to this extent only that that portion of the impugned order whereby the learned trial court has ordered for issuing recovery warrant against the Appellant is set aside. The Appellant shall appear before the trial court within a period of one month from the date of this order and shall submit his objection as to why the amount should not be recovered from him and the Presiding Officer of the Court shall provide a reasonable opportunity of hearing to the Appellant as well as to the prosecution and then it shall pass suitable orders on that application. In case the Appellant fails to file his objection within a period of one month, the trial court shall be at liberty to recover the amount in accordance with law.