Banarasi Lal Vishwakarma and Another vs State of U.P.

Naheed Ara Moonis, J.—The instant appeal has been preferred by the sureties u/s 449 Code of Criminal Procedure challenging the judgment and order dated 14.2.2011, passed by the Additional Sessions Judge/F.T.C.-II, District Jaunpur in Criminal Case No. 20 of 2010 State v. Banarasi and Anr, arising out of case crime No. 460 of 2008, State v. Achche Lal, under Sections 467, 468, 471, 419, 420, 413 IPC, P.S. Mungara Badshahpur, District Jaunpur.

Heard the learned Counsel for the Appellants, the learned AGA and perused the record.

With the consent of the learned Counsel for the Appellants and the learned AGA, this appeal is being finally disposed of at the stage of admission.

The relevant facts leading to the appeal is that the Appellants are stood sureties for an accused, Achche Lal, in case crime No. 460 of 2008, State v. Achche Lal, under Sections 467, 468, 471, 419, 420, 413 IPC, P.S. Mungara Badshahpur, District Jaunpur. On account of non appearance of the accused on the date fixed the court below has issued the notices against the Appellants. Later on the accused appeared before the court as is evident from the order sheet of the case. The accused Achche Lal was appearing and attending the court regularly, but a separate case u/s 446 Code of Criminal Procedure was registered against the Appellants as Criminal Case No. 20 of 2010, and on 1.10.2010 the bail bonds of the Appellants were forfeited and a notice for recovery was issued against them. The Appellants moved an application for recalling the order dated 1.10.2010 as the accused is already appearing and attending the court, therefore, the notices may be discharged. But the aforesaid application was rejected by the court below by an order dated 14.2.2011, on the ground that the proceedings were held up on account of non appearance of the accused and the State has suffered loss, hence there is no merit in the application to recall the order, therefore it is rejected.

From the perusal of the order sheet it appears that, it is not disputed that the Appellants have stood sureties for an accused Achche Lal and the accused failed to appear before the court concerned on the date fixed, but he subsequently appeared and is facing trial. It is not the case where the accused has absconded permanently rather he was temporarily absented from appearing before the court concerned, but later on he appeared. The court below has failed to give its due consideration to the factual aspect of the matter and rejected the application of the Appellants merely on the ground that the order cannot be recalled as the State has suffered loss due to non appearance of the accused. When it has been brought before the court below that the accused has appeared then it was the duty of the court below to consider this aspect of the case and pass an appropriate order. The Appellants had stood sureties to produce the accused Achche Lal and there may be various reasons of the absence of the accused and sometime beyond the control of the sureties. In such circumstances the sureties cannot be penalised if the accused appeared subsequently for facing trial. The court below while separating the proceedings u/s 446 Code of Criminal Procedure and directing to register a case by an order dated 1.10.2010 has also issued notices for recovery in the same breath. u/s 446 Code of Criminal Procedure show cause notice is mandatory prior to forfeiting the bonds and before issuing the recovery warrant. The order sheet of the case does not indicate that the bonds have been forfeited. It is the duty of the Court to give a notice to the person whose bond is or has been forfeited, calling upon him either to pay the penalty or to show cause why it should not be paid. If he pays the penalty in pursuance of the notice, the matter ends. If he does not pay the penalty and offers some explanation showing reasonable causes of non appearance of the accused, the Court has to consider the causes and pass a reasoned order thereon. If the cause shown is not sufficient the amount of the penalty should be determined remains unpaid, the Court has power to make recovery of the penalty as fine. Nothing such has happened as is evident from the order sheet itself and directly an order for recovery has been issued against the sureties, therefore, the order passed by the court below is unsustainable and as such cannot be upheld and is liable to be set aside. The appeal succeeds and is allowed and the recovery proceedings if any held in pursuance of the order is set aside. The impugned order dated 14.2.2011 and the order for recovery of bail bonds in pursuance of the said order are set aside. The lower court is directed to look into the matter a fresh in the light of the observations made here-in-above and pass an appropriate order in accordance with law after giving a show cause notice to the Appellants as contemplated in para 3rd of the Sub-section (1) of Section 446 Code of Criminal Procedure and also after providing him a reasonable opportunity of hearing to the Appellants-sureties.

With this direction this appeal is allowed.