This appeal arises from the order passed by the court below under Section 446 of the Code of Criminal Procedure (‘Code’, for short) directing the appellant to pay penalty of Rs.3,000/- and in default of payment of penalty and on exhausting the steps contained in Section 421 of the Code to undergo imprisonment in civil jail for a period of two months each.

2. The appellants are the sureties of an accused in a sessions case. They had executed a bond for Rs.25,000/- for appearance of the accused before the sessions court. On one particular day, the accused failed to appear and hence the court issued non-bailable warrant and notice against the sureties. A case was also registered against them and after giving sufficient opportunity to show cause, the appellants were directed to pay penalty. They were also directed to undergo imprisonment in civil jail for a period of two months. The said order is under challenge in this appeal filed under Section 449 of the Code.

3. On going through the order under challenge, I find that the order is per se illegal. It is seen from the order under challenge itself that there was no “default” on the part of the accused, which resulted in forfe