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2017 DIGILAW 699 (ALL)

Ram Prasad v. State

2017-03-06

OM PRAKASH

body2017
JUDGMENT : Om Prakash, J. 1. Case called out. Learned counsel for the appellant as well as the learned A.G.A. appearing for the State are present. Though the lower court record is not available, yet the Court is proceeding to decide the appeal on the strength of papers available on record. 2. The present criminal appeal has been filed by the appellant Ram Prasad against the impugned judgment and order dated 9.10.1987 passed by Special Judge, Mainpuri in Misc. Case No. 21 of 1985 under Section 446 Cr.P.C whereby amount of surety bond of the appellant was forfeited and recovery warrant was issued. 3. Heard Sri Alkesh Singh, learned counsel appearing for the appellant and learned A.G.A. for the State and perused the record. 4. Submission of the learned counsel for the appellant is that simultaneously on the date of issuing non-bailable warrant, amount of surety bond of the appellant was forfeited without giving opportunity to explain the matter. It is further submitted that on 9.10.1985 when appellant Ram Prasad was not present before the court below, non-bailable warrant was issued against him but he appeared on 19.10.1985 i.e. on the next date fixed by the trial court. It is next contended that after trial, accused has been acquitted. Since service of notice issued by the court below on 9.10.1985 was never effectuated upon the appellant, recovery warrant could not be issued against him. Referring to the paragraph nos. 5, 6, 7, 8 and 9 of the affidavit annexed with the appeal, learned counsel appearing for the appellant has submitted that the appeal is liable to be allowed and impugned order dated 9.10.1987 is liable to be quashed. 5. Learned A.G.A. argued that since accused did not appear before the Court below, no option was left to the court below but to pass forfeiture order against the sureties. It is further argued that court below had rightly proceeded to recover the amount of surety bonds as on the day of cancelling the bail of the accused, simple notice was issued to the appellant. There is no illegality or infirmity in the impugned order. 6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record. 7. There is no illegality or infirmity in the impugned order. 6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record. 7. From a perusal of the affidavit annexed with the memo of appeal and order sheet, it transpires that simple notice issued to the appellant was never served upon him. Until and unless notice is served to the appellant, order forfeiting the amount of surety bond in favour of the State and recovery order passed on that basis cannot be termed to be legal one. Mandatory requirements provided under the law have not been complied with before forfeiting the amount of surety bond of the appellant and issuing recovery warrant. Hence, in the circumstances, the impugned order dated 9.10.1987 is not sustainable. The appeal is liable to be allowed and the order dated 9.10.1987 passed by Special Judge, Mainpuri to realize the amount of surety bond is liable to be set aside. 8. Accordingly, the appeal is allowed. The order dated 9.10.1987 passed by Special Judge, Mainpuri to realize the amount of surety bond is set aside Copy of this order be sent to the Sessions Judge, Mainpuri for necessary compliance.