Allahabad High Court
Ram Pal Singh And Another vs State Of U.P. on 12 September, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:149316 Court No. - 86 Case :- CRIMINAL APPEAL No. - 3437 of 1999 Appellant :- Ram Pal Singh And Another Respondent :- State of U.P. Counsel for Appellant :- R.K.Singh Counsel for Respondent :- Govt.Advocate Hon'ble Nalin Kumar Srivastava,J.
1. Heard learned counsel for the appellants and learned A.G.A. for the State and perused the record.
2. This criminal appeal has been filed against the order dated 13.12.1999 passed by VIIth Additional Sessions Judge, Meerut proceeding to recover Rs. 20,000/- as penalty under Section 446 Cr.P.C. in S.T. No. 372 of 1997 (State Vs. Pratap and others), under Sections 307, 302 I.P.C., Police Station Ramala, District Meerut.
3. At the very outset, an attention of the Court was drawn to the fact that the appellant no. 2 Har Pal Singh has died, hence the present appeal is abated qua appellant no. 2 Har Pal Singh and the present appeal is effective only in respect of appellant No. 1 Ram Pal Singh.
4. It is submitted by learned counsel for the appellants that both the appellants stood as sureties to the accused Pratap Singh and when he absconded, the trial court proceeded to take steps to ensure his presence before the court and in the said proceedings, notices to the sureties were issued and further learned trial court proceeded to issue notice under Section 446 Cr.P.C. against appellants Ram Pal Singh and Har Pal Singh, the sureties of the accused Pratap Singh. It is also submitted that the accused Pratap Singh, who was absconding, was subsequently killed by some unknown miscreants and notice of this fact was also taken by the appellants and the court itself. However, despite that, the court concerned proceeded against the accused Pratap Singh, who was dead and in continuation of the said proceedings, a notice under Section 446 Cr.P.C. was also issued against the appellants and seizure order was made in favour of the State. Subsequently an application alongwith affidavit on behalf of the appellant No. 2 Har Pal Singh, now deceased was moved before the court concerned to exempt him for payment of Rs.20,000/-, the amount of penalty, as he is an indigent person. The said application was moved only on behalf of the appellant Har Pal Singh but however, no reply was given before the court by surviving appellant Ram Pal Singh who simply moved an application to call for a police report again in respect of the accused Pratap Singh but the same was rejected by the court concerned. It is also submitted that the learned trial court after hearing both the parties passed the impugned order dated 13.12.1999 against the surviving appellant No. 1 Ram Pal Singh to deposit the amount of surety bond in the court immediately, failing which the said amount shall be recovered as arrears of land revenue by way of recovery warrant. It is further submitted that since the accused Pratap Singh remained absconding in another case under Section 307 I.P.C., the present appellant was unable to procure his presence before the court. In these circumstances, the prayer has been made to set aside the impugned order dated 13.12.1999 passed by the VIIth Additional Sessions Judge, Meerut.
5. The said appeal was highly opposed by learned A.G.A. and it has been submitted that as per existing law, the appellant Ram Pal Singh was under legal obligation to procure the presence of the accused Pratap Singh, for whom he stood as surety before the court, failing which he was under obligation to pay the amount of surety bond i.e. Rs. 20,000/- in the court concerned.
6. I have considered the rival submissions made by learned counsel for the parties and have gone through the entire record including the impugned order. A specific plea has been taken by learned counsel for the sole surviving appellant that without following the legal procedure which has been provided under Chapter 34 of the Code of Criminal Procedure the learned trial court proceeded to pass an order to continue the case against the present appellant and further he proceeded to fix date for framing charge against him by the impugned order dated 13.12.1999.
7. A perusal of the record and particularly the impugned order goes to show that when the accused Pratap Singh continued to abscond, notices were sent to his sureties and they were granted sufficient time to meet out the said notice. When the sureties failed to procure the presence of the accused Pratap Singh, their bonds were forfeited in favour of the State vide order dated 30.10.1997 and subsequently a notice under Section 446 Cr.P.C. was sent to them to show cause as to why the amount of bond should not be recovered from them. A perusal of the impugned order further reflects that prior to the passing the order dated 13.12.1999, an order for forfeiting the bond was passed by the court.
8. An attention of this Court was drawn to the Section 446 Cr.P.C. Explanation-2 which is extracted as below:-
"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] [Inserted by Act 63 of 1980, Section 6 (w.e.f. 23-9-1980).]."
9. An inference is drawn from the perusal of the aforesaid provisions that if the surety succeeds to show cause, the court may not proceed to recover the amount of penalty.
10. The cause which is shown for committing default in the production of the accused Pratap Singh has been disclosed on the ground that the surety/appellant is a poor person having very little land in his ownership and he is never in a position to pay the whole amount of bond i.e. to say Rs. 20,000/- and on these grounds the trial court was prayed for to have a merciful approach towards him and in support of his submission, some revenue records were also submitted by the present appellant.
11. The learned trial court found that sufficient time was provided to the sureties to ensure the presence of accused Pratap Singh but they failed and the accused himself remained absconding.
12. One relevant fact, which is missing in the impugned order is to the effect that the murder of the accused Pratap Singh was committed during interregnum period when the court was making its effort to procure his presence before the court and a copy of the police report dated 13.03.1997 is annexed with the affidavit before this Court and from perusal of the said report, it appears that the accused Pratap Singh was found dead by villagers but the same is not certified so far. In these circumstances, the factum of death of the accused Pratap Singh is found to be not established before the trial court and this Court as well. Hence the present appellant remains a defaulter for not ensuring the presence of the accused Pratap Singh before the court. This Court also finds that all the legal procedures have been adopted by the learned trial court which are meant to be prescribed in respect of the surety who fails to procure the presence of the accused before the court for which he stands surety before the court.
13. However, since it is deposed that the present appellant is a poor person and case relates to the year 1997 and the present appeal is also pending since 1999 i.e. for a period of 25 years, I am of the view that a lenient view ought to have been taken in the present matter by the learned trial court when the matter is decided on merit by it particularly invoking its power under Section 446 (3) Cr.P.C. but so far as proceedings started by the learned trial court vide order dated 13.12.1999 is concerned, it require no interference and the present appeal deserves to be dismissed.
14. Accordingly, this appeal is hereby dismissed.
15. Let a copy of this order be sent to the learned trial court for information and necessary compliance.
Order Date :- 12.9.2024 Rmk.