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2003 DIGILAW 291 (UTT)

Anil Narang v. State of Uttaranchal

2003-12-02

IRSHAD HUSSAIN

body2003
JUDGMENT Irshad Hussain, J. : Heard Ms. Seema Sirohi learned Counsel for the appellants and A.G.A. and perused the record. 2. This is an appeal under section 449 of the Code of Criminal Procedure (for short 'Code') against the proceedings drawn and concluded as per the provisions of section 446 of the Code. One of the accused Ajay Sethi in the Special Sessions Trial 4-A of 1990 was released on bail and Joginder Singh Narang stood surety for him. Later on, accused was declared absconder and bail bonds were forfeited. When the notice was sent to the said surety it was reported that he had died. An enquiry on being made it was disclosed that the two sons of the surety were in possession of the estate left behind by the deceased. The description of the property, house No. 45/4 Khurbura Mohalla, Dehradun was also disclosed and Anil Narang and Yashpal Narang-the two sons of the deceased surety being in possession of the estate of the deceased were sent show cause notice calling upon them to discharge the liability of the deceased surety under the bond. They did not put in appearance despite service of the notice whereby the learned Special Judge, Dehradun by the impugned order dated 8.1.2002 held these two sons liable to discharge the liability and to pay the amount of the surety bond i.e. Rs.7 ,000/- and recovery warrant were directed to be issued against both of them. Record reveal that both these legal heirs of the deceased surety deposited the amount of penalty surety bond to the tune of Rs. 7,000/- on 5.3.2002 vide receipt Annexure-3 of the instant appeal. 3. Learned Counsel for the appellants submitted that the surety Joginder Singh Narang had in fact. died in the year 1996 and till then his surety bonds were not forfeited, therefore1 by virtue of sub-section 4 of section 44b of the Code the estate of the deceased surety stand discharged from all liability in respect of the bond. From record it is evident that the accused Ajay Sethi remained present till the month of March, 1997, and he absconded thereafter. It is thus obvious that the surety bond was forfeited in the year 1997 when the said surety Joginder Singh Narang had already died as stated above. Consequently, the estate of the deceased surety was protected by the above provisions of law. It is thus obvious that the surety bond was forfeited in the year 1997 when the said surety Joginder Singh Narang had already died as stated above. Consequently, the estate of the deceased surety was protected by the above provisions of law. However, the sons of the deceased surety failed to take up that stand before the learned Judge, Dehradun as they did not put in appearance despite service of notice. However, considering the legal right which accrued on account of the death of the surety in the year 1996, the appellants could not have been saddled with the liability to pay the penalty or bond money. 4. For the reasons aforesaid, this appeal succeed and is hereby allowed. The order dated 8.1.2002 is set aside. Since the estate of the deceased surety Joginder Singh Narang stand discharged from all liability in respect of the bond, no amount of surety bond could have been realized from the appellants. The amount having been deposited by them, shall accordingly be refunded to them. Appeal Allowed.