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2015 DIGILAW 2988 (ALL)

Kanta Devi v. State of U. P.

2015-09-18

OM PRAKASH VII

body2015
JUDGMENT Om Prakash-VII, J. Supplementary affidavit filed today is taken on record. 2. This criminal appeal has been filed by the appellant against the judgment and order dated 22.6.2015 passed by the Additional Sessions Judge, Court No. IXth, Moradabad in criminal misc. case no. 1 of 2012 (State vs. Smt. Kanta) under Section 446 Cr.P.C. connected with Session Trial No. 109 of 2010, arising out of case crime no. 240 of 2010, under Section 8/22 N.D.P.S. Act, Police Station G.R.P., District - Moradabad forfeiting the surety bond and directing the appellant to deposit the amount of Rs. 1,00,000/- within a specified period or to initiate recovery proceedings. 3. It appears that First Information Report was lodged against one Wahid at case crime no. 214 of 2010 under Sections 8/22 N.D.P.S. Act. The appellant has taken surety. When Wahid absconded and did not appear before the Court, appellant surety was directed to trace out him. Since the appellant was unable to trace out Wahid, proceedings under Section 446 Cr.P.C. was initiated against her. Consequently, she moved an application before the court concerned for discharge from the liability of the surety. The application was rejected, hence this appeal. 4. I have heard Shri Bharat Garg, learned counsel for the appellant and the learned AGA appearing for the State and perused the entire record. 5. Learned counsel for the appellant has submitted that the appellant has made all possible efforts to trace-out the accused but he could not be traced-out, therefore, she moved the said application before the court concerned for discharge from the liability of surety. It is further submitted that the trial court without considering the entire facts illegally rejected the application by the impugned order. The appellant is lady. There is no malafide or deliberate mistake/carelessness on her part. 6. On the other hand, learned AGA has submitted that vide order dated 26.5.2012 when the accused Wahid was absent in the aforesaid Session Trial pending before the Additional Sessions Judge, Court No. IX, Moradabad, the Court concerned forfeited surety bonds in favour of the State and directed the office to open separate file under Section 446 Cr.P.C. on the ground that appellant surety despite service, could not produce the accused nor gave any explanation. Thus, there is no illegality or infirmity in the impugned order warranting interference by this Court. Thus, there is no illegality or infirmity in the impugned order warranting interference by this Court. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record including the ordersheet of the lower court. 7. A perusal of the record shows that as the accused was not appearing in the matter, the Court below issued non-bailable warrant against him. Notice to the appellant surety was also issued, which was served upon her. She could not give any explanation nor was able to produce the accused before the Court. Thereafter, vide order dated 26.5.2012, the Court below forfeited the surety bonds in favour of the State and started proceedings under Section 446 Cr.P.C.. issuing notice to the surety for recovery of the bond amount. The appellant surety moved the aforesaid application for discharge from her liability as surety. The court below after hearing the parties vide impugned order rejected the application and directed the appellant surety to deposit the said amount within specified period. 8. It is admitted fact that accused is still absconding in the matter. Appellant is surety of the accused Wahid. Before forfeiture of the surety bonds, notice was served upon her. Accused was not produced by the appellant surety. Thus, the Court below has rightly forfeited the surety bonds in favour of the State. It is worth to mention here that the order dated 26.5.2012 forfeiting surety bonds has not been challenged by the appellant. So far as the order dated 22.6.2015 is concerned, the Court below has considered the entire aspect of the matter. Since accused Wahid was not produced by the appellant surety, the Court below has rightly rejected the application for discharge. The appellant stood surety of the accused Wahid, who is still absconding. The court concerned has passed the impugned order following the provisions prescribed under Section 446 Cr.P.C. 9. In view of the above discussions, I am of the opinion that there is no illegality or infirmity in the impugned order. The appeal being devoid of merits, is dismissed.