Badri Pandey and Others vs State of U.P.

I.P. Singh, J.—Criminal Appeal No. 3472 of 1978 has been filed by four sureties, namely, Badri Pandey, Baijnath Pandey (sureties of accused Hare Ram Thakur), Baliram Pandey and Govind Thakur (sureties of accused Inder Deo Thakur) and Criminal Appeal No. 351 of 1979 has been filed by accused Hare Ram Thakur against the order dated 6-11-1978, passed in State v. Mare Ram, Criminal Misc. Case No. 28 of 1978 forfeiting the personal bonds and surety bonds of the said two accused and four sureties and directing the realisation of the full amounts of those bonds by way of penalty.

In State v. Ram Singhasan, S. T. No. 80 of 1972, of P. S. Haldi, District Ballia the abovementioned two accused were convicted and sentenced. They were bailed out under the orders of the High Court. Subsequently those bail bonds were cancelled. Accordingly both Hare Ram and Inder Deo accused were to surrender themselves before the court to undergo their respective sentences. They however, did not surrender in time despite coercive steps including issuing of non-bailable warrants of arrest against them. Accordingly the personal bail bonds of the accused stood forfeited. However, on 16-9-1976 notices were issued to the four sureties to show cause why their surety-bonds be not forfeited and penalty thereof realised. They were further required to produce the accused persons by 16-10-1978.

On 16-10-1978 all the sureties appeared before the court and applied for time to produce the accused. Baijnath Pandey and Badri Pandey sureties had prayed for one month''s time while Bali Ram Pandey and Govind had prayed for 1-1/2 month''s time. However, the court allowed time upto 6-11-1978.

On that date i.e. 6-11-1978 the impugned order was passed. It was recorded that only Bali Ram Pandey surety of Inder Deo accused was present. The presence of no other surety was recorded meaning thereby that remaining three sureties were absent on that date. It was then observed that the accused had knowledge of the decision of the High Court and they were avoiding their arrest. The sureties were bound to produce them in the court and they had failed in doing so. Accordingly their surety bonds stood forfeited. It was further observed that despite service of notices the sureties had not shown any sufficient cause for the non-production of the accused. In these circumstances, their surety bonds were forfeited and full amount of their bonds was ordered to be realised by way of penalty against both the accused as well as all the four sureties and order for attachment of their properties was issued.

Of course, Bali Ram Pandey surety who was present in the court on that date had further applied for time to search out the accused but that prayer was rejected.

The only ground which has been stressed by the learned Counsel for the Appellants is that subsequently between 11th and 15th November 1978 both the accused had surrendered in the court and as such the penalty ordered to be realised in full by the impugned order should be set a side. Here I may point out that although few more points have been mentioned in the grounds of appeal but none of them was pressed.

The sum and substance of the above argument of the learned Counsel for the Appellants appears to be that the amount of penalty which is being realised against the forfeited bonds should be remitted in full. It is conceded that the applications to that effect were already moved u/s 446(3) Code of Criminal Procedure before the court below which were still pending. Those applications are dated 16-11-1978. Reference to those applications is made in the order sheet dated 16-11-1978 appearing at the foot of paper No. 11 of the paper book which runs as follows:

16-11-1978. Sureties apply for setting aside the order of attachment. Fix 2-12-1978.

Then the case was adjourned to 8-12-1978. The lower court record shows that these applications could not be disposed of because the stay order passed in Criminal Misc. Appeal No. 3472 of 1978 dated 7-12-1978 was communicated to the court on 8-12-1978.

The argument advanced on behalf of the sureties is that the circumstances that accused subsequently surrendered should be taken into account to set aside the impugned order. Subsequent events may be considered, under the circumstances of a particular case, when a matter of remitting full or any portion of the penalty u/s 446(3) Code of Criminal Procedure arises before the court concerned. Those prospective events and circumstances could not be considered in recrudesce to judge the validity or irregularity of the initial order forfeiting the bonds and ordering realisation of their amount by way of penalty. The contents and effect of the impugned order have already been narrated above and to my mind there is no illegality or irregularity in passing the said order.

In the result, for the above reasons Criminal Appeal No. 3472 of 1978 stands dismissed. For the same reasons, the order forfeiting the personal bond and requiring realisation of the amount of that bond by way of penalty against Hare Ram Thakur Appellant is also not illegal and requires no interference in his appeal No. 351 of 1979.

Both the appeals are accordingly dismissed. The stay order dated 7-12-1978 in Criminal Appeal No. 3472 of 1978 and stay order dated 22-2-1979 passed in Criminal Appeal No. 351 of 1979 are vacated.