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2018 DIGILAW 2233 (ALL)

Banti @ Phoolan Singh v. State of U. P.

2018-10-26

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : ARVIND KUMAR MISHRA-I, J. 1. Heard Sri Shiv Raj Singh, learned counsel for the applicant and learned A.G.A. for the State. 2. This application has been directed against the imposition of unreasonable condition vide order dated 21.08.2018 while granting bail second time to the applicant-Banti @ Phoolan Singh-in concerning Sessions Trial No.1628 of 2011 arising out of case crime no.294 of 2011, passed by First Additional Sessions Judge, Room No.1, Kanpur Nagar. 3. Factual background of this case is that the applicant was initially on bail in this case, but he jumped the bail during course of proceeding at later stage. He surrendered to the custody of the court and was sent to jail. Later on, he applied for bail before the lower court, which after considering the case admitted him to bail, but forfeited Rs.30,000/-towards his personal bond and directed to deposit the same, which has been the centre point of challenge in this case. 4. The contention is that while considering the bail application second time after jump, Additional Sessions Judge, Kanpur Nagar allowed the second bail application with condition whereby he virtually usurped the due proceeding, which was required to be gone into separately by virtue of provisions contained under 446 Cr.P.C., which on the face is erroneous and perverse and cannot be contemplated at this juncture when the bail application was under consideration under Section 439 Cr.P.C. Thus, forfeiting the bail bonds without observing norms contained under Section 446 Cr.P.C. violates the mandate of the spirit contained under Section 446 Cr.P.C. itself. The matter was one confined to consideration of bail and bail only and such specific exercise regarding forfeiture of personal/bail bond was not directly involved as such, the order, in so far as it relates to forfeiture of money described in personal bond of the applicant is legally not justified. The specific procedure laid down under 446 Cr.P.C. is required to be followed. 5. Also heard the learned A.G.A. and perused the various appended to this application. 6. The specific procedure laid down under 446 Cr.P.C. is required to be followed. 5. Also heard the learned A.G.A. and perused the various appended to this application. 6. The contention raised by the learned counsel for the applicant is consistent one to the extent that the court below while considering the second bail application after jump virtually usurped the proceedings laid down under Section 446 Cr.P.C. If the order of forfeiture of bail bond/money of bond is directed to be made then it is required to be made by the court below first after giving notice and ample and reasonable opportunity to the applicant to defend his case, as to why the amount of personal bond be not forfeited and realised from him. Unless and until, that opportunity is given, forfeiture of bond is, prima facie, illegal. 7. The court below is competent enough to initiate proceeding by resorting to procedure prescribed under Section 446 Cr.P.C. and a miscellaneous case ought to have been registered first against the applicant and his sureties then only final orders may be passed in accordance with law after hearing both the side, but anything short of that procedure would be erroneous. Therefore, order of forfeiture of money and direction to deposit the same in its present form while allowing the second bail application after jump, is not sustainable in the eye of law. 8. Consequently, that portion of the order impugned dated 21.08.2018, which stipulates for realization of Rs.30,000/-from the applicant-as the amount of personal bond-relating to the first bail application, is hereby set aside and quashed. However, it is directed that the court below shall proceed afresh under Section 446 Cr.P.C. by registering a miscellaneous case against the applicant and will afford opportunity of hearing to the applicant as to why the amount should not be realized and after that stage is reached and after considering the reply, if any, given by the prosecution, the court below will pass appropriate orders in accordance with law then only the procedure prescribed under 446 Cr.P.C. will be deemed to have been complied with. 9. In view of above, the condition imposed by way of forfeiture of amount of personal bond and the direction for realization of money is hereby set aside, rest of the impugned order is sustained. 10. 9. In view of above, the condition imposed by way of forfeiture of amount of personal bond and the direction for realization of money is hereby set aside, rest of the impugned order is sustained. 10. However, it is directed that nothing has been expressed on the merit of the case regarding the personal bond amount, which was furnished by the applicant while he was granted bail for the first time by the court. 11. Accordingly, this Criminal Miscellaneous Application is allowed in the aforesaid terms.