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1986 DIGILAW 668 (ALL)

Badrul Hasan v. State of U. P

1986-09-04

VIRENDRA KUMAR

body1986
JUDGMENT Virendra Kumar, J. - Revisionists Badrul Hasan and Kalbe Abbas have filed this revision under Section 397, Cr. P.C. against the order dated January 22, 1986, passed by V Additional Sessions Judge, Hardoi in Misc. Criminal Appeal No. 77 of 1984 under Section 446, Cr. P.C. affirming the order of Judicial Magistrate, Sandila directing the sureties to pay Rs. 1,500/- each as penalty on forfeiting of surety bonds. 2. The revision petition was admitted as the learned counsel for the revisionists urged that the impugned order suffers from illegality. Both sides have pointed out that they are quite ready for final arguments today. Both the parties have been heard and the material available before the court were perused. 3. Both the revisionists have stood sureties for the accused Takkan in a Criminal Case No. 840/84 under Sections 147, 148, 324 and 286, I.P.C. pending before the Court of Judicial Magistrate, Sandila, district Hardoi. The case was fixed for appearance of the accused on December 14, 1983 before the same court. On that day neither the accused appeared nor the sureties produced the accused before the Magistrate. The Magistrate, therefore, ordered for issue of show cause notice against the sureties under Section 446, Cr. P.C. and at the same time further issued non-bailable warrant against the accused. The detailed judgment of the lower appellate court dated January 22, 1986 clearly shows that the show cause notices were served on them personally on January 9, 1984 for January 28, 1984. But even on January 28, 1984 the surety - revisionists did not appear before the court. Learned counsel for the revisionist urges that the sureties had appeared before the court on January 28, 1984 and an application was moved. But this does not seem to be correct. I have perused the detailed judgment of the lower appellate court. It may also be mentioned here that from the side of the revisionists a copy of the application purporting to have been moved before the Judicial Magistrate, has been filed. But this application is dated April 7, 1984. It does not mention at all that the sureties had appeared before the trial Court on January 28, 1984 for which date they were served with the show cause notice under Section 446, Cr. But this application is dated April 7, 1984. It does not mention at all that the sureties had appeared before the trial Court on January 28, 1984 for which date they were served with the show cause notice under Section 446, Cr. P.C. It is thus evident that the sureties not only failed to produce the accused, but absented themselves on the date fixed for hearing them and also did not put forward any explanation in reply to the show cause notice. It seems that the trial Court passed order for forfeiture of the sureties bonds and about the payment of penalty, in respect of the forfeited amount. For this purpose again notices seem to have been issued to the sureties for 7-4-1984. The order of the lower appellate court shows that the sureties defaulted in putting their appearance or giving any explanation even on that day. But from the side of the revisionists a copy of the application dated April 7, 1984 has been filed in support of their contention before this court that they had appeared before the court on that day in reply to the second notice, which was issued for 7-4-1984. In view of the clear cut finding of the lower appellate court in this regard the assertion of the revisionists for having appeared before the court on 7-4-1984 does not seem to be correct. Even if it is taken for granted that the sureties had appeared before the court 7-4-1984 and moved the application, a copy of which has been filed in this respect the fact remain that apart from the aforementioned default, the trial Court did not accept their explanations. Both the courts have arrived at a finding of fact to this effect that there was default on the part of the sureties revisionists in producing the accused before the court and that no satisfactory explanation to their satisfaction had come forward from the side of revisionists. There seems to be no satisfactory reason to differ with the finding of both the courts on the point that the sureties - revisionists have committed default for which the order for forfeiture of bonds and realisation of the penalty was passed. But there are certain extenuating circumstances which the learned counsel for the revisionists has placed before this court, which go to justify the reduction of the amount of penalty against the surety revisionists. But there are certain extenuating circumstances which the learned counsel for the revisionists has placed before this court, which go to justify the reduction of the amount of penalty against the surety revisionists. The accused has subsequently appeared before the trial Court and the trial has ended in acquittal. In this revision from the side of the revisionists a copy of that judgment has been filed. The ends of justice would meet if the amount of penalty of Rs. 1,500/- is reduced to a sum of Rs. 500/- against each of the two surety - revisionist. 4. In the result, the revision petition is allowed in part. The amount of penalty of Rs. 1,500/- is reduced to a sum of Rs. 500/- against each of the two revisionists. It shall be deposited by each surety - revisionist within six weeks from today and the warrant of realisation shall not be executed against the sureties for six weeks from today. 5. Let a copy of the order be supplied to the revisionists' counsel, as prayed, within a week, on payment of due charges.