Allahabad High Court
Badam Singh S/O Sri Komal Singh vs State Of U.P. on 5 January, 2007
Author: R.K. Rastogi
Bench: R.K. Rastogi
JUDGMENT R.K. Rastogi, J.
1. Heard the learned Counsel for the appellant and the learned A.G.A, for the State. In this appeal since only a law point is involved, it can be decided without summoning the lower court record. Hence the appeal is being heard and decided on merits at the admission stage.
2. It appears that in S.T. No. 380 of 2002 State v. Sant Singh and Ors. under Section 302/34 I.P.C. the appellant Badam Singh and one Hakim Singh stood sureties for production of a Tractor. The court passed an order for production of that Tractor but that Tractor was not produced and several applications were moved from the side of the applicant/appellant for time to produce it. On 20.11.06 the applicant Badam Singh again moved an application to obtain time, as a last chance, to produce the Tractor. On that application the Court passed an order to the effect that the applicant Badam Singh was directed to produce the Tractor on 1.9.2006 but that Tractor was not produced on that date and according to the report of the S.O. Chaubiya the Tractor had been sent to some other place and so it could not be seized. It has further been stated in that order that thereafter notices were issued to the applicant to produce the Tractor and the applicant in spite of repeated opportunities being given did not produce the Tractor. On 20.11.06 an application for grant of further time to him on personal ground of his counsel was given, hence the application was allowed and date 27.11.06 was fixed. On that date also, the Tractor was not produced, and the applicant Badam Singh and Hakim Singh again moved applications for 15 days' time for filing reply. Then that application was rejected by the court holding that the last opportunity had already been provided and the matter regarding production of Tractor was pending since 1.9.06, and since Badam Singh and Hakim Singh had not produced the Tractor and had not filed any reply, the Court passed an order for forfeiting their personal bonds and further ordered that a sum of Rs. 2 lacs is imposed as penalty. The court also forfeited the personal bond of Badam Singh and further passed an order that a case under Section 446 Cr. P. C. should be registered against him and a recovery warrant of Rs. 2 lacs be issued against him. Aggrieved with that order the appellant Badam Singh filed this appeal.
3. Learned Counsel for the appellant cited before me a ruling of this court in Ram Nandan v. State of U.P. 1997 JIC 1082 (All) in which it has been held that an order for forfeiture of bond and direction for initiating recovery proceedings without following mandatory provision of issuing show cause notice is invalid. He submitted that in this case the Court had passed order for registration of case under Section 446 Cr.P.C. after passing order for forfeiture of personal bond and issuing recovery warrant of Rs. 2 lacs as penalty without issuing any show cause notice and so the proceedings are invalid.
4. From perusal of the certified copy of the orders dated 20.11.06 and 27.11.06, I do not find any force in the above contention of the appellant. It is apparent from perusal of the aforesaid order dated 20.11.06 that the matter regarding production of Tractor was pending since 1.9.06 and the appellant had been given repeated opportunities to produce it and he had also been given last chance for production of the Tractor on 20.11.06, but he failed to produce it on that date and he moved another application for giving 15 days' further time to produce it, on the personal ground of his counsel. The Court held that as a last chance, time upto 20.11.06 was given to produce the Tractor. However, the applicant was again given time to produce the Tractor on 27.11.06 but he did not produce it on that date also, and he moved another application seeking 15 days' more time to file reply. This application was rejected by the Court with this observation that the matter of production of Tractor was pending since 1.9.06 and sureties Badam Singh and Hakim Singh had not produced the Tractor nor filed their reply. The court therefore after rejecting the application forfeited the personal bond of Badam Singh and passed an order imposing penalty of Rs. 2 lacs to be recovered from him. Thereafter an order was passed for registration of case under Section 446 Cr.P.C. against him.
5. The contention of the learned Counsel for the appellant is that the proper procedure for the court was to first register the case under Section 446 Cr.P.C. against the sureties and then a show cause notice should have been issued against them and then after giving reasonable opportunity to the sureties under Section 446 Cr.P.C. suitable orders should have been passed.
6. It is true that whenever the sureties commit default, the proper procedure is to register a case under Section 446 Cr.P.C. and then to proceed against them after issuing show cause notice and following the proper procedure under Section 446 Cr.P.C. In this case the court passed order for registration of case under Section 446 Cr.P.C. after issuing notice to the sureties for production of Tractor. Sufficient opportunity was also provided to the sureties to produce the same and to file their reply but no reply was filed by the appellant nor did he produce the Tractor even after providing last opportunity for this purpose. Thus there has been substantial compliance of legal requirement against the sureties as they had been given sufficient opportunity for production of Tractor and for filing reply to show cause notice. The appellant failed to produce the Tractor and to file reply in spite of sufficient opportunity being given for this purpose. All these proceedings have been taken against the appellant in Sessions Trial No. 380/02. When all the requirements of Section 446 Cr.P.C. have been complied with, the proceedings will not be vitiated merely on this account that no case under Section 446 Cr.P.C. had been registered against the sureties at the initial stage. Thus, the position in this way, is that there has been compliance of all the requirements of Section 446 Cr.P.C. in the present case and the proceeding can not be deemed to be vitiated on the ground that the court passed an order for registration of case under Section 446 Cr.P.C. after passing order for forfeiture of personal bond and recovery of penalty. The appeal has thus got no force and is liable to be dismissed.
7. The appeal is, accordingly dismissed. However, the learned Counsel for the appellant submits that the appellant may be given one month's time to produce the Tractor. I am of the view that this prayer of the appellant can be granted. I, therefore, allow one month's time to the appellant to produce the Tractor before the Court below and during this period of one month from today no coercive process shall be issued against him and recovery of Rs. 2 lacs as penalty shall also remain stayed. However, it is made clear that if the appellant fails to produce the Tractor within the aforesaid stipulated period of one month, the Court may proceed with the recovery proceeding as already ordered.
8. Let a certified copy of this order be issued to the learned Counsel for the appellant on payment of usual charges within 48 hours.