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MANI RAM AND ANOTHER versus STATE OF U.P.

High Court of Judicature at Allahabad

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Mani Ram And Another v. State Of U.P. - CRIMINAL APPEAL No. - 6542 of 2007 [2007] RD-AH 17874 (15 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Criminal Appeal No. 6542 of 2007

Mani Ram and another Vs. State of U.P.

...........

Hon'ble Shiv Charan J.

The instant appeal has been preferred u/s 449 of Cr.P.C. against the judgement and order dated 26.7.2007 passed by Special Judge/Gangster Act Agra/18th Addl. Sessions Judge in Gangs. Sessions Trial No.118 of 2006 State Vs. Anar Singh and others u/s 2/3 Gangsters Act. By the impugned order the learned Sessions Judge forfeited the personal bond of the appellants and ordered for initiating proceedings u/s 446 Cr.P.C. for recovery of the amount.

From the perusal of the file it is evident that these appellants were also the accused along with other co-accused persons in Gangster Sessions Trial No. 188 of 2006 u/s 2/3 Gangsters act. These appellants were granted bail by the Special Judge/ Gangster Act on 8.6.2006 and 11.5.2006. The Investigating Officer submitted charge sheet in the case on 22.11.2006. After submission of the charge sheet the case was registered as Gangster S.T. No.188/2006 State Vs. Anar Singh and others, after taking cognizance on 22.11.2006 court ordered for preparation of the copies and fixed 4.1.2007 for receipt of the copies. On 4.1.2007 accused Anar Singh and Lal Singh appeared. Exemption application was moved on behalf of Ram Sanehi and for rest of the accused persons order was passed for issuing notice for appearance for 15.2.2007. On 15.2.2007 accused Ram Sanehi and Lal Singh were present. On behalf of Anar Singh application was moved for exemption. Rest of the accused were absent. Order was passed for issuing bailable warrant of Rs.50000/- against them and 17.5.2007 was fixed for appearance. On 17.5.2007 Ram Sanehi and Lal Singh was present and rest including Anar Singh were absent. Order was passed for issuing non bailable warrant against them and fixed 26.7.2007 for appearance. On 26.7.2007 also Ram Sanehi and Lal Singh were present and rest were absent. Order was passed for issuing non bailable warrant and processes u/s 82 Cr.P.C.

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against Anar Singh, Mani Ram and Chiranji Lal. The personal bonds of these accused persons were also forfeited and recovery warrant was issued. Further ordered for issuing show cause notice to the sureties of Anar Singh, Mani Ram and Chiranji Lal and 6.9.2007 was fixed for appearance. Hence by order dated 26.7.2007 the personal bond of the appellants were forfeited and recovery proceedings were initiated.

It has been argued by learned counsel for the appellants that as the appellants were granted bail in the offence vide order dated 8.6.2006 and 11.5.2006 and thereafter the Investigating Officer submitted the charge sheet on 22.11.2006. Cognizance was taken by the Court on 22.11.2006 and 4.1.2007 was fixed for receipt of the copies from the Copying Section. On 4.1.2007 order was passed for issuing notices to the appellants fixing 15.2.2007. The Presiding Officer of the Court without ensuring that whether there is sufficient service of the notice to the appellants ordered for issuing bailable warrant against the appellants and 17.5.2007 was fixed for appearance and on 17.5.2007 also the court did not try to satisfy itself that whether there is sufficient service of bailable warrant or not and outright ordered for issuing non bailable warrant against them and fixed 26.7.2007. And even on 26.7.2007 without being satisfied that there is sufficient service or not of non bailable warrant then order was passed for forfeiture of the personal bond and issuing recovery warrant. That this was most unjustified on the part of the Presiding Officer to forfeit the personal bond of the appellants and initiate the recovery proceedings without ensuring that there is sufficient service of the notice, bailable warrant and non bailable warrant against the appellants. Without giving proper opportunity to the appellants and without ensuring the service, the Court was not justified in forfeiting the personal bond of the appellants and hence the court committed grave illegality in forfeiting the personal bond of the appellants and the order is

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prima facie illegal.

Learned A.G.A disputed the argument of the appellants counsel and argued that as the appellants failed to appear before the court concerned on the date fixed,hence the court was justified in forfeiting the personal bond and the order of forfeiture of personal bond was valid.

I have considered all the facts and circumstances of the case as well as submissions of learned counsel for the appellants and learned A.G.A. Certified copy of the order sheet of Gang. S.T. No. 188 of 2006 has been filed and from the perusal of the order sheet it is evident that the court without ensuring that whether there is sufficient service of the notice bailable warrant and non bailable warrant on the appellant, ordered for issuing processes turn by turn. When the case was put up before the court on 15.2.2007 then it was the duty of the presiding officer to ensure that there is service of summons issued by the court against the appellants but not a single word has been mentioned in the order on 15.2.2007 that there is sufficient service of the notice. The Presiding Officer ordered for issuing bailable warrant of Rs.50000/-. Prior to issuing bailable warrant it was the duty of the presiding officer to ensure that there is sufficient service of the notice and then only order should have been passed for issuing non bailable warrant. I agree with the argument of learned counsel for the appellants that even on 17.5.2007 the presiding officer without ascertaining that whether there is sufficient service of bailable warrant on the appellant ordered outright for issuing non bailable warrant against the appellant and on 26.7.2007 ordered for forfeiture of the personal bond and issuing recovery warrant. There is no mention in any of the order that the presiding officer tried to acquaint himself that there is sufficient service of the notice, of bailable warrant and non bailable warrant on the appellants and the Presiding Officer presuming without ascertaining the record that there is service of the notice of

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bailable warrant non bailable warrant continued to pass orders for issuing processes of bailable warrant and non bailable warrant. These are the mechanical order passed by the Presiding Officer and it cannot be said that the Presiding Officer has tried to scrutinize the file prior to issuing the processes. That order of forfeiture would have been passed only if the appellants in spite of the sufficient service of the notice of bailable warrant and other person failed to appear in the court and without ascertaining the service of the processes the court cannot be said justified in passing the order of forfeiture of personal bond.

I directed learned counsel for the appellants to file the copy of the summons,bailable warrant and non bailable warrant in order to ascertain that whether actually these processes was served on the appellants prior to passing the order of forfeiture. Learned counsel for the appellants filed photo copy of the folio of the Form of application for obtaining certified copy of the notice, bailable warrant and non bailable warrant. But the report was submitted by the Sessions Clerk of the Court that in view of index of the file it is not found that summons, bailable warrant and non bailable warrant were issued against the appellants or not. That there is no summon or warrant on the file, hence the copy cannot be issued of the summons, bailable warrant and non bailable warrant. Under these circumstances from this fact it has been established that neither the summons and warrant were issued nor the service was affected on the appellants and the presiding officer in a mechanical manner continued to pass orders for issue of processes notice,bailable warrant and non bailable warrant without ascertaining the service and without ascertaining whether actually these processes were issued or not ,hence there is substance in the argument of the learned counsel for the appellants. I am of the opinion that without service of the notice of bailable warrant and non bailable warrant on the appellants the court was not justified in passing the order of forfeiture of the

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personal bonds. The order of learned Sessions Judge cannot be said to be justified in accordance with law. Such order cannot be passed by surprise all of sudden. The purpose of the personal bond is to ensure the appearance of the accused persons to face the charge against him. If a person failed to appear in the court in spite of the service of the summons, notice, bailable warrant then personal bond can be forfeited otherwise not and in the present case the presiding officer passed the order of forfeiture without ensuring the service of summons notice or bailable warrant on the appellants.

For the reasons mentioned above, I am of the opinion that learned Sessions Judge was not justified in passing the order of forfeiture of the personal bond of the appellants without ensuring the service on them. The order cannot be affirmed and the result is that appeal deserves to be allowed.

Appeal is allowed. Order dated 26.7.2007 regarding the forfeiture of the personal bond of the appellant is set aside and the recovery proceedings if any issued against the appellants shall stand dropped and the appellants shall face the case before the trial court.

Dt.15.11.2007

Hsc/


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