# Chet Ram v. State of U.P

- **Citation:** (2009) 2 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-10
- **Case number:** Criminal Appeal No. 3852 of 2009
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chet-ram-v-state-of-u-p-41655
- **Pages:** 4

## Headnote

548 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Code of Criminal Procedure-section-446Recovery warrant issued without issuing
show cause notice-without affording any
opportunity
to
explain
the
circumstances-held-illegal Session Judge
directed to give one more opportunity if
the
notices
already
issued
to
the
applicant-consider
the
explanation
against proposed recovery and take
appropriate
decision-if
the
applicant
surrender within period stipulated by the
Court-impugned order shall stand setaside.

Held: Para 7

It is not clear as to whether the trial
court had given any show cause notice to
the appellant or not. It is for the Special
Judge to examine the record and arrive
at a conclusion on this point. If no such
notice has been given to the appellant,
the Special Judge shall provide an
opportunity to the appellant to show
cause against the proposed recovery. If
the show cause notice has already been
given to the appellant, the court shall
provide one more opportunity to the
appellant to submit his explanation
against the show cause notice. If the
appellant offers any cause in pursuance
of the opportunity so given to him
against the proposed recovery, the trial
court shall consider the same and pass a
reasoned order thereon as required by
section 446 Cr.P.C. These procedural
formalities shall be done only when the
appellant surrenders before the court
concerned within thirty days from the
date of this order. If the appellant so
surrenders
and
also
moves
an
application for a fresh bail or recall of
warrant/processes under section 82/83
Cr.P.C., the learned Special Judge shall
give due consideration to his application
and pass appropriate order thereon.

## Text

2 All] Chet Ram V. State of U.P.
547
is not to accept the submissions of the
appellants that observations of the learned
Single Judge in the impugned order is
without jurisdiction for the simple reason
that learned Single Judge has just
reiterated earlier orders passed by the writ
court and asked the appellants to comply
them. No independent or fresh order on
the merits has been passed and, therefore,
the contention of the appellants side
suggests to interpretation of the orders
passed by the writ court in respect to their
compliance as being claimed or about
their non compliance as being complained
which cannot be done here. Accordingly
the appellants cannot take advantage of
the decisions so referred.

26. In the decision given in the case
of Modi Telefibres Ltd. and others
(Supra) the Apex Court found that the
learned Single Judge has recorded a
finding about committing of the contempt
by the appellants and the case was
adjourned to accept the contemnor to
purge the contempt or else for deciding
the quantum of punishment. This not
being the situation here, the decisions so
referred may be of not much help to the
appellants.

27. So far the decision in the case of
A. P. Verma (Supra) on which reliance
has been placed by the appellants, the
Apex Court said that if a contention
which goes to the very root of the
jurisdiction is raised and the same is
turned down or the order or decision is
such which decides some bone of
contention effecting the rights of the
parties aggrieved, an appeal would be
maintainable. Here is not a case where
any fresh decision has been given by the
learned Contempt Judge deciding some
bone of contention effecting the right of
the parties rather earlier orders passed in
the
writ
were
just
reiterated
and,
therefore, neither it can be said to be a
case of an order by the learned Judge
which is without jurisdiction or deciding
rights of the parties afresh.

28. On these facts, it cannot be said
that the cases on which reliance has been
placed by the learned counsel for the
appellants have taken the view that every
order as and when passed by Hon'ble
Single Judge is appealable under Section
19 of the Act.

29. This being the situation on an
analysis and in view of the decision of the
Apex Court in the case of Midnapore
Peoples' Coop. Bank Ltd. and others
(Supra), this Court has to take the view
that appeal filed by the appellants is not
maintainable.

30. Accordingly this contempt
appeal is held to be not maintainable and
thus it is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2009

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Appeal No. 3852 of 2009

Chet Ram

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri Ajay Tiwari

Counsel for the Opposite Party:
A.G.A.
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Code of Criminal Procedure-section-446Recovery warrant issued without issuing
show cause notice-without affording any
opportunity
to
explain
the
circumstances-held-illegal Session Judge
directed to give one more opportunity if
the
notices
already
issued
to
the
applicant-consider
the
explanation
against proposed recovery and take
appropriate
decision-if
the
applicant
surrender within period stipulated by the
Court-impugned order shall stand setaside.

Held: Para 7

It is not clear as to whether the trial
court had given any show cause notice to
the appellant or not. It is for the Special
Judge to examine the record and arrive
at a conclusion on this point. If no such
notice has been given to the appellant,
the Special Judge shall provide an
opportunity to the appellant to show
cause against the proposed recovery. If
the show cause notice has already been
given to the appellant, the court shall
provide one more opportunity to the
appellant to submit his explanation
against the show cause notice. If the
appellant offers any cause in pursuance
of the opportunity so given to him
against the proposed recovery, the trial
court shall consider the same and pass a
reasoned order thereon as required by
section 446 Cr.P.C. These procedural
formalities shall be done only when the
appellant surrenders before the court
concerned within thirty days from the
date of this order. If the appellant so
surrenders
and
also
moves
an
application for a fresh bail or recall of
warrant/processes under section 82/83
Cr.P.C., the learned Special Judge shall
give due consideration to his application
and pass appropriate order thereon.

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard Sri Ajay Tiwari, the
learned counsel for the appellant and the
learned AGA and perused the impugned
order.

2. The appellant Chet Ram has
preferred this appeal against the order
dated 8.5.2009 passed by the learned
Special Judge Gangster Act/A.S.J. Vth,
Bareilly in Criminal Case No. 160 of
2000, whereby the learned Special Judge
has issued a recovery warrant against the
appellant for recovery of Rs.25,000/-
being the amount of penalty on account of
forfeiture of the personal bond of the
appellant.

3. With the consent of the learned
counsel for the appellant and the learned
A.G.A. the appeal is being finally
disposed of at the stage of admission.

4. It may be mentioned that the
appellant Chet Ram is an accused in the
Criminal Case No.160 of 2000 (State vs.
Babu and others) pending before the
lower court. The case of co-accused
Nizamuddin was decided on 25.5.2002
but the cases of remaining three accused
namely, Babu, appellant Chet Ram and
Shafiq could not be decided due to their
absence. The appellant Chet Ram was not
turning up and as such the learned Special
Judge issued a non bailable warrant for
his arrest and also issued processes under
section 82/83 Cr.P.C. The properties of
the appellant were attached on 11.4.2008
in pursuance of the attachment order
issued under section 83 Cr.P.C. Even after
that attachment the appellant did not turn
up. Consequently the learned Special
Judge forfeited the appellant's personal
bond and directed for issue of a warrant
for recovery of Rs.25,000/- as penalty
from the appellant and further directed for
issue of a non bailable warrant and
2 All] Chet Ram V. State of U.P.
549
processes under section 82/83 Cr.P.C.
against the appellant.

5. The learned counsel for the
appellant submitted that the appellant was
in jail in connection with some other case
and as such could not appear before the
learned Special Judge. It was further
submitted that the learned Special Judge
has not given any show cause notice
under section 446 Cr.P.C. to the appellant
before issuing the warrant for recovery of
the penalty of Rs.25,000/-. Issue of the
recovery warrant without giving a show
cause notice to the appellant was invalid.
The learned counsel further submitted that
the appellant would appear before the
Special Judge within the time allowed by
this Court and to move appropriate
application before the learned Special
Judge for modifying the order issuing the
recovery warrant. It was further submitted
that the impugned order be modified
accordingly.

6. In my opinion, issue of a show
cause notice under section 446 Cr.P.C. to
the person, whose bond has been forfeited
before issuing recovery warrant, is
mandatory. 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 explanations 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 by the court and if the penalty
so determined remains unpaid, the court
has power to make recovery of the
penalty as fine. If the person to whom the
show cause notice is served, offers
sufficient causes, the court has power to
discharge the notice and remit the penalty.
The order remitting the penalty wholly or
partly must be based on reasons to be
recorded by the court.

7. It is not clear as to whether the
trial court had given any show cause
notice to the appellant or not. It is for the
Special Judge to examine the record and
arrive at a conclusion on this point. If no
such notice has been given to the
appellant, the Special Judge shall provide
an opportunity to the appellant to show
cause against the proposed recovery. If
the show cause notice has already been
given to the appellant, the court shall
provide one more opportunity to the
appellant to submit his explanation
against the show cause notice. If the
appellant offers any cause in pursuance of
the opportunity so given to him against
the proposed recovery, the trial court shall
consider the same and pass a reasoned
order thereon as required by section 446
Cr.P.C. These procedural formalities shall
be
done
only
when
the
appellant
surrenders before the court concerned
within thirty days from the date of this
order. If the appellant so surrenders and
also moves an application for a fresh bail
or recall of warrant/processes under
section 82/83 Cr.P.C., the learned Special
Judge shall give due consideration to his
application and pass appropriate order
thereon.

8. If the appellant surrenders before
the learned Special Judge within the time
limit fixed by this Court, the impugned
order will stand set aside, otherwise the
same would remain operative.
550 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
9. The appeal stands disposed of
finally in the light of the observations
made here in before.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2009

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE Y.C. GUPTA, J.

Criminal
Misc.
Habeas
Corpus
Writ
Petition No. 13411 of 2009

Kamlesh Pathak

...Petitioner
Versus
District Magistrate, Auraiya and others

 ...Respondents

Counsel for the Petitioner:
Sri Viresh Misra
Sri G.S. Hajela
Sri Amit Misra

Counsel for the Respondents:
Smt. Poonam Singh
Sri J.P. Singh
Add. Solicitor General of India
Sri Sudhir Mehrotra
A.G.A.

Constitution of India, Art. 226-Detention
order passed by District Magistrate U/s 3
(3) of National Security Act-challenged
on the ground of delay in deciding
representation-23 days delay remained
unexplained-detention
order
not
sustainable.

Held: Para 26

In view of above averments, it is crystal
clear that there has been a delay of 26
days by the Union of India in considering
the
representation
of
the
detenu.
Explanation offered by the Union of
India for this occasioned delay of 26
days is not at all satisfactory and
acceptable and we, therefore, reject it.
In such a view, we are left with no other
option but to conclude that there has
been an undue and unexplained delay on
the part of the Union of India in
considering
detenu
petitioner's
representation, which nullifies continued
detention of the petitioner.
Case law discussed:
1996 (33) ACC 911, 1990 SCC (Cr) 258; AIR
1990 SC 1196; 1991 SCC(1) 128,

(Delivered by Hon'ble Vinod Prasad J.)

1.

Kamlesh
Pathak,
the
petitioner/detenu, has questioned the
Constitutional validity of his detention
order dated 28.1.2009 (annexure no.3),
under
National
Security
Act
1980,
(hereinafter referred to as the Act), passed
by
Detaining
Authority,
District
Magistrate, Auraiya, respondent no.1,
wielding his power, under section 3(3) of
the Act.

2. Grounds for petitioner's detention,
based on the dossier supplied by the
police authorities, as was served to him
along with annexure no.3, in compliance
with section 8 of the act, are that Manoj
Kumar
Gupta,
Executive
Engineer,
Auraiya was murdered by Shekhar
Tiwari, MLA and his socio criminises,
regarding which a State wise closer strike
was organized by the Samajwadi Party on
25.12.2008. To maintain law and order
during that strike, at Tahsil crossing in
Auraiya city, police picket headed by incharge inspector was posted, when at
11.30 a.m., the petitioner accompanied by
his brothers Santosh Pathak and Ramu
Pathak along with hundred and fifty other
persons started torning off banners and
posters in Homganj market. When the
local police endeavored to forbade them
from
indulging
into
said
lawless
disorderly immoral behavior, the mob