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SHER SINGH AND ANOTHER versus STATE OF U.P.

High Court of Judicature at Allahabad

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Sher Singh And Another v. State Of U.P. - CRIMINAL APPEAL No. - 468 of 2007 [2007] RD-AH 16619 (11 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.49

Criminal Appeal No.468 of 2007

Kalwa Vs. State of U.P.

..........

Hon'ble Shiv Charan J.

Heard learned counsel for the appellant, and learned A.G.A. for the State and perused the judgement and order dated 2.6.2007 and 30.6.2007 of S.T. No.337/02 u/s 308 IPC P.S. Kharkhauda District Meerut. By the impugned order learned Sessions Judge court no.1 Meerut forfeited the bail bonds of the appellant and ordered for issuing notice for recovery of the amount of surety bond.

The facts of the case shows that the appellant along with one person stood sureties of accused Kamruddin in S.T. No. 337 of 2002 u/s 307,394,120B IPC for Rs.25000/- each. During proceedings of the Sessions Trial the accused Kamruddin remained absent hence non bailable warrant and notices to the sureties were issued. In spite of allowing sufficient time to the appellant the accused Kamruddin could not be produced in court. Hence the trial court forfeited the bail bonds and ordered for issuing recovery warrant.

It has been argued by learned counsel for the appellant that it is a fact that the accused Kamruddin is still absconding and to the best of his ability and efforts the accused Kamruddin could not be produced in the court. But the appellant spare no stone unturned in order to trace out the accused Kamruddin and the court ought to have considered the sincerity of the efforts exerted by the appellant in tracing out the accused but the court has not considered the sincere efforts of the appellant and even considering the prayer for reducing the amount the court refused to remit the amount substantially. The appellant is very poor person and he has no sufficient means to pay the amount of surety bond. Learned Sessions Judge was not justified in passing the order for recovery of the surety amount.

Learned A.G.A. opposed the argument of the counsel for the appellant and argued that undisputedly the accused Kamruddin is absent and he neither be arrested nor produced by the surety in the court. The appellant and another surety are under legal obligation to produce the accused in court and this was the inherent undertakings of the appellant to produce him but failed to discharge their legal obligation of undertakings to the surety bond to produce the accused in court. Legally the appellant is liable to pay the amount and the order of learned Sessions Judge is justified.

I have considered the facts and circumstances of the case and submissions made by learned counsel for the appellant and learned A.G.A as I have stated above that the accused Kamruddin is absconding in the case and as per argument of appellant's counsel to the best efforts of the appellant the accused could not be apprehended and he could not produce the accused in court to face trial. There can be no denial of the fact that if a person is appearing as a surety of an accused then he is under legal obligation to produce the accused in court when ever required by the court. Hence appellant was also under legal obligation to produce the accused in court. Learned counsel for the appellant has also not disputed this fact that the court allowed sufficient time to the appellant to produce the accused in court but as the accused could not be traced out and could not be produced in court. There is no illegality or impropriety in the order. The appellant undisputedly committed default of the surety bond and the amount of surety bond is to be recovered from the appellant.

The appellant counsel argued that considering the sincerity of the appellant the trial court as well as this court must reduce and remit the amount if not full then partially u/s 446 (3)Cr.P.C. The appellant is a poor person and not in a position to pay this amount. But I disagree with this argument. It may be possible that all sorts of sincerity and efforts were used by the appellant in producing the accused in the court but even then the fact that the appellant could not produced the accused in court and undisputedly the appellant committed default of the bail bond. If amount is to be reduced in the circumstances that the accused is absconding then it will be a misuse of the process of law when a surety is appearing as surety of the accused then he is supposed to be aware that in case at any point of time the accused remained absent during the proceeding, the appellant is liable to pay the amount of surety bond and merely this assertion by tounge will not be sufficient that he made all sincere efforts for tracing out the accused but the accused could not be produced before the court and if in such circumstances the amount is to be reduced, then it will also bemisuse of the process. I do not think any justification to reduce the amount in the circumstances that still the accused is absconding.

For the reasons mentioned above, there is no merit in the appeal. There is no justification to admit the appeal for hearing and the same is liable to be dismissed summarily.

The appeal is dismissed summarily.

Dt.11.10.2007

Hsc/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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