Allahabad High Court
Raghvendra Singh And Anr. vs State Of U.P. on 5 September, 2022
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- CRIMINAL APPEAL DEFECTIVE No. - 1862 of 2018 Appellant :- Raghvendra Singh And Anr. Respondent :- State of U.P. Counsel for Appellant :- Anand Prakash Pandey,Ajay Kumar,Surya Prakash Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Shekhar Kumar Yadav,J.
On delay condonation application.
Heard learned counsel for the applicants.
Cause shown in the affidavit found sufficient.
Accordingly, delay condonation application is allowed and delay is condoned.
On Appeal This is a criminal appeal under section 449 of the Criminal Procedure Code, against the order dated 06.01.2005 passed by 5th Additional Sessions Judge, Faizabad in Criminal Misc. Case No. 03/ 2004, State vs. Hanuman Prasad and another, under section 446 Cr.P.C. arising out of S.T No. 785 of 1995 and also against the consequential order of recovery issued against the appellants.
Necessary facts which gave rise to this appeal, in brief, are that the appellants had stood surety for accused involved in S.T. No. 785 of 1995 under section 302 IPC and executed a surety bond and since the accused became absent and did not appear before the trial court, therefore, a Criminal Misc. Case under section 446 Cr.P.C. was registered and notice was issued to the appellants. On 27.09.2005 accused was acquitted of all the charges by the trial court vide order dated 27.09.2005. The Criminal Misc. Case under section 446 Cr.P.C., however, remain pending against the sureties. On 15.5.2000 the appellants moved an application with the contention that accused are in jail and is extending threats to sureties, therefore they be relieved of the liability of sureties. However, without disposing of the said application filed by appellants on 15.5.2000 for discharge of sureties, the court below had issued recovery warrant of amount of Rs. 50,000/- against each appellant vide order dated 27.09.2005, hence this appeal.
I have heard the learned counsel for the appellant and the learned AGA for the State and perused the material on record.
It has been contended on behalf of the appellants that the trial court without deciding the application filed by appellants acquitted the accused and therefore the criminal proceedings against the appellants only because they stood sureties is unjust, unlawful and illegal. It is further submitted that after acquittal of the accused, appellants have not received any notice or summon issued by the trial court and went into confidence that the case in which they have taken surety was finalized. It has also been contended that surety bond of the appellants had never been forfeited and as such the impugned order for issuance of realization warrant of the surety amount is illegal. Section 446 Cr.P.C. makes it mandatory for the court to record the satisfaction that the surety bond has been forfeited and after recording the grounds of such satisfaction may make an order for the payment of the penalty. There is nothing on record which could show that the court below had passed any order for the forfeiture of the surety bond of the appellants or had recorded the grounds of its satisfaction before making the impugned order for the issuance of the realization warrant of the penalty amount.
In view of the above circumstances, including the fact that accused had been tried for the offence and had been acquitted, the impugned order cannot be justified and appears to be illegal.
Consequently, this appeal is allowed and the impugned order dated 06.01.2005 passed by 5th Additional Sessions Judge, Faizabad in Criminal Misc. Case No. 03/ 2004, State vs. Hanuman Prasad and another, under section 446 Cr.P.C and consequential order of recovery are accordingly quashed.
Order Date :- 5.9.2022 RavindraKSingh