The obligations of a surety under Section 446 Cr.P.C. and the court's discretion to modify the sentence based on compliance and the surrender of the accused.

JUDGMENT :

(Shamim Ahmed, J.) :

1. Heard Sri Ajay Pratap Singh, learned counsel for the appellant and Sri Ashok Kumar Srivastava, learned A.G.A. for the State and perused the material available on record.

2. This is an appeal under Section 449 Cr.P.C. against the judgment and order dated 18.08.2008 in Criminal Misc. Case No. 03/08 (State Vs. Dharmendra Kumar Singh), under Section 446 Cr.P.C., Police Station Kotwali Ayodhya and against the judgment and order dated 17.03.2008 passed by learned Additional Session Judge/F.T.C.-5th, Faizabad in Sessions Trial No. 114/97, arising out of Case Crime No. 1497/97 : State Vs. Radhey Shyam and others, under Sections 147, 148, 149 and 302 I.P.C., Police Station Kotwali Ayodhya, Faizabad.

3. Learned counsel for appellant has submitted that on 07.07.2005 the appellant had taken surety of accused Radhey Shayam in Sessions Trial No. 114/97, arising out of Case Crime No. 1497/97 : State Vs. Radhey Shyam and others, under Sections 147, 148, 149 and 302 I.P.C., Police Station Kotwali Ayodhya, Faizabad and regarding this bond of surety of Rs. 20,000/-was submitted before the court concerned.

4. Learned counsel for appellant has further submitted that when accused Radheshyam did not appear before the court, notice was issued to appellant (surety) Dharmendra Kumar Singh under Section 446 Cr.P.C., thereafter the court below vide order dated 17.03.2008 forfeited the surety of Rs.20000/-and issued recovery warrant and in default of payment, the trial court also imposed six months imprisonment.

5. Learned counsel for appellant has further submitted that the appellant filed representation for quashing of the proceedings initiated against him vide order dated 17.03.2008 stating therein that on 24.07.2008 the appellant produced the accused Radhey Shyam before the Court and the accused was sent to jail.

6. Learned counsel for appellant has further submitted that without considering the averments of the appellant and considering that the accused has already been surrendered before the court below and sent to jail, the trial court vide order dated 18.08.2008 disposed of the representation of the appellant and send the appellant to jail for six months, in default of payment of surety, with the observation that if the surety deposited the surety amount, he shall be released from jail.

7. Learned counsel for the appellant has further submitted that thereafter the appellant filed the instant Criminal Appeal for quashing of the impugned orders and prayed for bail and this Court vide order dated 29.08.2008 allowed the bail application of appellant, thus the appellant was in jail about eleven days.

8. Learned counsel for the appellant has further submitted that the appellant is not the accused in this case. He stood surety and proceeding under Section 446 Cr.P.C. is as follows:

“(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. 1 pr