A formal notice under Section 446 of the Code of Criminal Procedure, 1973, is not mandatory before forfeiting a bail bond and recovering the penalty from the surety, as the court has the discretion to either call upon the surety to pay the penalty or issue a show cause notice.

( 1 ) THIS appeal under Section 449 Criminal Procedure Code is directed against the order dated 21st January, 1983 passed by Shri H. P. Bagchi, Additional Sessions Judge, Delhi by which he imposed a penalty of Rs. 5,000j- on the appellan The appellant is the mother of Suresh Pal who was standing trial in a case based on FIR No. 51 of 1981 of Police Station Tilak Nagar. The appellant stood surety in the sum of Rs. 5,0001- for the due appearance of her son Suresh Pal before the court. The trial of the case against her son was going on and it appears that Suresh Pal absented from the proceedings with effect rom 28th July, 1982. It is then stated that because of the non-appearance of Suresh Pal, appellant received a notice for production of the accused on 15-10-1982. She accordingly appeared and made an application submitting therein that the whereabouts of her son were not known and, therefore, she pleaded for grant of some time. Time was accordingly granted to her. But she could not produce Suresh Pal and, therefore, in this manner she made two more similar applications. Ultimately the learned trial court forfeited the surety bond and imposed a penalty of Rs. 5,0001- upon her. The appellant feels aggrieved against that order for the reason that no notice was actually given to her as to why the amount of the bail bond be not recovered from her. A grievance was also made that the full amount of the bail bond should not be ordered to be recovered in view of the facts that she was an aged woman.

( 2 ) I have heard the learned counsel for the appelant. None has appeared for the State.

( 3 ) THE main grievance made out by the learned counsel for the appellant is tnat the learned trial court did not issue any notice to the appellant under Section 446 Criminal Procedure Code to show cause as to why the amount of the bail bond be not realised from her. It is also stated that copy of any such notice alleged to have been served on the appellant is not in the file and, therefore, it must be presumed that no such notice was given to the appellant. I have perused the order sheet of the file of the learned trial court. It appears that no Presiding Officer presided in this court from 28th July, 1982 to 6th October, 1982. It was only on 6th October, 1982 that the learned trial court ordred the issuance of non-bailable warrants against the accused and also a notice to the surety. The appellant appeared in the court on 15th October, 1982 and made an application staling therein that non-bailable warrants had been issued against her for not producing the accused on that date. She tried her best to trace out the whereabouts of the accused and she requested more time to produce the accused and also that the non-balable warrants against her may be cancelled. She was accordingly granted time. On 29th October, 1982 she prayed for one more month to be given to her to search the accused. On 22nd November, 1982 she sought two months time staling herein that she was trying to search the accused but could not find him. Then on 3rd January, 1983 she made another application to the court requesting for two more months time to be given to her to trace out the accused and if the accused did not appear she will then deposit the surety amount in the court as directed by the court. It was then on 3rd January, 1983 that the trial court passed the following order :-

"surety is present. Surety was given last opportunity to produce the accused. But she failed to produce him. The bail bonds of the surety and the accused are being forefeited. Surety is directed to deposit the amount of Rs. 5,000. 00 , but the surety has moved an application submitting that she is the mother of the accused and she must produce him on the next date. She requested for an adjournment. Heard. In the interest of justice the surety is given one more opportunity to produce the accused. No further opportunity will be given. "the case was adjurned to 21st January, 1983. On that dat