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2024 DIGILAW 378 (ALL)

Jagdish Prasad v. State of U. P.

2024-02-06

SHAMIM AHMED

body2024
JUDGMENT : 1. List of cases has been revised and the case is being taken up in the revised call for hearing. 2. Heard learned counsel for the parties. 3. This is an appeal under Section 449 Cr.P.C. against the judgment and orders dated 30.06.2008 and 02.08.2008 passed by learned Additional District Judge / Fast Track Court-III, Faizabad exercising the power under Section 446 Cr.P.C. in Criminal Misc. Case No.7 of 2008, initiated in Original Sessions Trial No.29/2008, under Sections 41/411/413 I.P.C. connected with Sessions Trial No.27 of 2008, under Section 4/25 of Arms Act, Police Station G.R.P., District Faizabad by means of which the surety bonds of the appellants have been forfeited. 4. Learned counsel for the appellant submitted that in the above F.I.R., the accused Ram Ashish was implicated and he was enlarged on bail by the learned court below. He further submitted that the accused is son of the servant of appellants, as such, the appellants took the surety of accused Ram Ashish and submitted the surety bonds of Rs.10,000/- each. 5. He further submitted that in the month of April, 2008, due to non appearance of accused Ram Ashish before the trial court, the learned court below issued notices to sureties i.e. the instant appellants and after getting the knowledge of the same, the appellants appeared before the learned trial court on 21.04.2008 and sought some time to trace and produce the accused Ram Ashish before it. 6. He further submitted that on 02.05.2008 and 12.05.2008, the appellant no.1 himself moved an application before the learned trial court and informed the location of accused Ram Ashish and requested to direct the concerned police station to arrest the accused Ram Ashish, but the learned trial court ignoring the fact that the appellants i.e. sureties are doing their best efforts to trace the accused Ram Ashish, had passed the impugned order to forfeit the surety bonds of the appellants. 7. He further submitted that on 17.07.2008, the accused Ram Ashish was arrested due to efforts of sureties and was sent to jail. He further submitted that the learned trial court had discharged the accused Ram Ashish vide order dated 25.07.2008. Thereafter, the appellants i.e. the sureties moved an application on 26.07.2008 before the learned trial court for recalling of the order of forfeiting the surety bonds but the learned trial court has rejected the same. 8. He further submitted that the learned trial court had discharged the accused Ram Ashish vide order dated 25.07.2008. Thereafter, the appellants i.e. the sureties moved an application on 26.07.2008 before the learned trial court for recalling of the order of forfeiting the surety bonds but the learned trial court has rejected the same. 8. Learned counsel for the appellant further submitted that he does not want to press the appeal on merits and since the impugned order is of the year 2008 and the instant appeal is pending since 16 years, thus, a lenient view be taken by this Court. 9. It is admitted that the appellants are not the accused in the case. They stood sureties and even the accused Ram Ashish was arrested and sent to jail by the efforts of the sureties and thereafter was discharged by the learned trial court. 10. The proceeding under Section 446 Cr.PC. is as follows:- "(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Explanation.- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. 1 provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months. (3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and,; if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved." 11. Considering the overall facts and circumstances of the case and also the argument of learned counsel for the appellants that the accused of the instant case has been discharged from the offence by learned trial court, the present criminal appeal is allowed and orders dated 30.06.2008 and 02.08.2008 passed by learned Additional District Judge / Fast Track Court-III, Faizabad exercising the power under Section 446 Cr.P.C. in Criminal Misc. Case No.7 of 2008, initiated in Original Sessions Trial No.29/2008, under Sections 41/411/413 I.P.C. connected with Sessions Trial No.27 of 2008, under Section 4/25 of Arms Act, Police Station G.R.P., District Faizabad by means of which the surety bonds of the appellants have been forfeited, are hereby set aside. 12. A certified copy of this order be sent to the court concerned for necessary compliance. 13. Lower court record, if any, shall also be sent back to the court concerned.