Allahabad High Court
Giri Raj Prasad vs State Of U.P. on 4 August, 2022
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- CRIMINAL APPEAL No. - 1149 of 2004
Appellant :- Giri Raj Prasad
Respondent :- State of U.P.
Counsel for Appellant :- Mohd Nizam Uddin
Counsel for Respondent :- A.G.A.
Hon'ble Mohd. Aslam,J.
None present for appellant. Learned A.G.A. for State is present.
The instant criminal appeal has been moved under Section 449 Cr.P.C. on behalf of the appellant- Giri Raj Prasad against the impugned judgment and order dated 19.01.2004 passed by learned Additional District & Sessions Judge, Court No.6, Mathura in Criminal Misc. Case No. 02 of 2001 convicting the appellant under Section 446 Cr.P.C.
Perusal of office report dated 12.05.2022 shows that as per the report of Chief Judicial Magistrate, Mathura dated 12.01.2022, the appellant (surety)- Riri Raj Prasad has died on 22.12.2014, which is available on record.
Regarding confirmation of death, learned C.J.M. has recorded statements of Sub-Inspector Rakesh Kumar Giri, Serving Officer, P.S. Goverdhan, District- Mathura and witnesses Amit Rawat, Representative of Village Pradhan, Village Panchayat Adeeg, Bharat Singh, neighbor of appellant and Laxman, grandson of appellant, which are available on record. He has also annexed the death certificate of appellant dated 09.01.2015 issued under Registration of Births and Deaths Act, 1969 and the certificate issued by Village Pradhan Smt. Snehlata.
In the light of aforesaid, it is proved that appellant (surety)- Giri Raj Prasad has died on 22.12.2014.
In this case, the appellant- Giri Raj Prasad had stood surety for accused Rewati Singh @ Suresh in Sessions Trial No. 512 of 1995 (State vs. Rewati Singh). From the perusal of record, it appears that when the notice was served upon the appellant, he appeared before the court and moved an application that accused Rewati Singh @ Suresh for whom he had stood surety had died in the earth-quack in January, 2000 in Bangali Colony, P.S. Raab Bate Bhuj, Gujarat and has prayed for calling report in this regard and that application was rejected by learned Additional District & Sessions Judge, Court No.6, Mathura vide order dated 19.01.2004 and without forfeiting the bail bond recovery warrant was issued against the appellant (surety).
Learned A.G.A. has submitted that without forfeiting the bail bond, the recovery proceedings cannot be issued against the appellant (surety) for realization of amount of surety bond according to Section 446 Cr.P.C., which reads as follows:-
"446. Procedure when bond has been forfeited.
(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. 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......."
Hon'ble Apex Court inGhulam Mehdi vs State Of Rajasthan, AIR 1960 SC 1185, held that according to Section 446 Cr.P.C. the court has to record the proof that the bail bond has been forfeited, and thereafter, he may proceed to recover the amount of bail bond.
In the present case, the entire order-sheet has been filed, but there is no whisper in the order-sheet that bail bond of appellant (surety)- Giri Raj Prasad was forfeited. In above circumstances, the Court is of the opinion that the learned Sessions Judge could not proceed to issue recovery warrant against the appellant (surety) without forfeiting the bail bond.
Accordingly, the present appeal stands allowed and the impugned order dated 19.01.2004 passed by learned Additional District & Sessions Judge, Court No.6, Mathura issuing recovery warrant against the appellant (surety) is, hereby, set-aside.
Let the appeal be consigned to record.
Copy of this order along with lower court record be transmitted to the lower court concerned for necessary information and compliance.
Order Date :- 4.8.2022
Vikas
