Allahabad High Court
Kashi Ram vs State Of U.P. on 12 July, 2018
Equivalent citations: AIRONLINE 2018 ALL 2519
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Case :- CRIMINAL APPEAL No. - 1233 of 2018 Appellant :- Kashi Ram Respondent :- State Of U.P. Counsel for Appellant :- Dinesh Kumar Counsel for Respondent :- G.A. Hon'ble Mrs. Vijay Lakshmi,J.
The present Criminal Appeal under Section 449 Cr.P.C. has been filed by the surety, who is aggrieved by the impugned orders dated 3.6.2011 and 21.11.2017 passed by the Additional Sessions Judge, Court No. 1, Mathura, in Crl. Misc. Case No. 03 of 2011, under Section 446 Cr.P.C., (State Vs. Kashi Ram) arising out of S.T. No.46 of 2008, (State Vs. Randhir) under Sections 304,323,504 and 506 of I.P.C. P.S. Kosikalan, District-Mathura.
The appellant is surety of accused Randhir in aforesaid Sessions Trial who had bound himself for Rs. One Lakh in order to secure attendance of the accused Randhir before the court below. The accused Randhir was appearing before the court below regularly, however, on some dates he became absent. As a result on 18.5.2011 coercive processes were issued against him and notices were issued to the sureties under section 446 Cr.P.C. to show cause why they should not be directed to pay the bond amount as penalty. On the basis of the aforesaid order dated 18.5.2011 Misc. Case No. 3 of 2011, State Vs. Kashi Ram, u/s 446 Cr.P.C. was registered separately against the appellant on 3.6.2011. The appellant appeared before the court below and prayed for time to secure the appearance of the accused before the Court. The time was granted. However, due to various reasons like strike by lawyers and the Presiding Officer being on leave, hearing of Misc. Case could not take place and ultimately the learned Additional Sessions Judge, Court No. 1, Mathura, on 21.11.2017 passed the impugned order whereby realization warrant was issued against the appellant. The aforesaid two orders i.e. the orders dated 3.6.2011 forfeiting the bail bonds and 21.11.2017 issuing recovery warrant passed by the court below are under challenge in this appeal.
Heard learned counsel for the appellant and learned AGA. Perused the record.
Learned counsel for the appellant has contended that after passing of the impugned order dated 3.6.2011 the appellant made all possible efforts to search out the accused Randhir and during the course of search he came to know that the accused is detained in Neemka Jail, Faridabad, in the State of Haryana, in some other case. Therefore, he moved an application in the connected S.T. No. 48 of 2008, State Vs. Randhir, on 11.4.2013 before the Court below mentioning therein that the accused is detained in Neemka Jail, Faridabad, in some other case under the jurisdiction of Haryana Court and he be summoned from Neemka Jail, Faridabad.
The court below on the same day i.e. 11.4.2013 allowed the application of the appellant and summoned the accused from Neemka Jail, Faridabad. Copy of the order dated 11.4.2013 passed in S.T. No. 48 of 2008, State Vs. Randhir, allowing the application moved by the appellant has been annexed as Annexure no. 2 to the affidavit filed in support of the appeal. However, the aforesaid order passed by learned court below was not mentioned in the order sheet of the Misc. Case u/s 446 Cr.P.C., where dates continued to be fixed in a routine manner, whereas in view of the fact that the learned trial court had allowed the application moved by the surety and had already summoned the accused from Neemka Jail, Faridabad, the proceedings of the Misc. Case u/s 446 Cr.P.C. should have been dropped on the same day i.e. 11.4.2013 when the application filed by the appellant was allowed. Under such confused state of affairs the court below on 21.11.2017 passed the impugned order for realization of the amount of forfeited bail bond.
Thus, the impugned order dated 21.11.2017 has been clearly passed without application of mind by the court below and without paying any attention to the order dated 11.4.2013 passed in the connected S.T. No. 46 of 2008. The certified copy of the order-sheet of the aforesaid Sessions Trial filed by the appellant clearly shows that the accused Randhir has been summoned from Neemka Jail, Faridabad, on each date.
In view of the above facts and circumstances, the appeal is allowed and the impugned orders dated 3.6.2011 and 21.11.2017 passed by the court below in Crl. Misc. Case No. 03 of 2011, under Section 446 Cr.P.C., (State Vs. Kashi Ram) arising out of S.T. No.46 of 2008, (State Vs. Randhir) under Sections 304,323,504 and 506 of I.P.C. P.S. Kosikalan, District-Mathura, are set aside and the penalty imposed on the appellant is remitted.
Let a copy of this judgment be sent to the court concerned forthwith for necessary compliance.
Order Date:-12.7.2018 Pcl