Ram Khelawan and Another vs State of U.P.

Hon''ble Naheed Ara Moonis, J.—Heard learned counsel for the parties and have been taken through the record.

The instant appeal has been filed against the judgment and order dated 19.11.2011 passed by the Additional Sessions Judge Court No.2, Banda in Criminal Case No. 4/11/2011 (State Versus Ram Khelawan and another) u/s 446 Cr.P.C. Police Station Nairani whereby the learned Addl. Sessions Judge Banda had initiated proceedings for realization of amount of security as arrears of land revenue from the appellants.

The genesis of the case in short compass is that the a accused Raja Raidash was released on bail on 8.9.2011 on the sureties of the appellants. During the pendency of the trial, the accused Raja Raidash did not appear. Notices were issued to the appellants to produce the accused Raja Raidash but the appellants could not produce the accused on the date fixed. Thus the notice u/s 445 Cr.P.C. was issued for depositing the money in lieu of executing the bail bond and the proceedings against the appellants were initiated for forfeiting the bail bonds.

It is submitted by the learned counsel for the appellants that the appellants had submitted reply to the show cause notice but the court below had rejected the objection of the appellants on extraneous consideration and directed the Collector Banda to realize Rs. 25000/- against each of the appellants towards penalty as arrears of land revenue. It is further submitted that the accused Raja Raidash had already surrendered on 22.11.2011 in court and he is still in jail, therefore, the order passed by the court below is against the mandatory provisions of law that prior to passing an order of recovery u/s 446 Cr.P.C. for realization of sureties towards penalty as arrears of land revenue, notice ought to have been given as to why the same may not be recovered.

Per contra learned AGA contended that there is no illegality or perversity in the order passed by the court below. The accused Raja Raidas was released on bail on the execution of sureties by the appellants. The accused had absconded,thus the court was under bounden to take action against the appellants so as to ensure presence of the accused Raja Raidas.

Having considered the rival submission advanced by the learned counsel for the parties, this Court is of the opinion that no proper notice was given to the appellants prior to passing the order for realizing the amounts of bond towards penalty as arrears of land revenue. The accused has also surrendered and is in jail therefore, the impugned order does not deserve to sustain and is hereby set aside. The appeal is allowed. The court below is directed to pass fresh orders in accordance with law.