# Daya Ram & Anr v. State of U.P

- **Citation:** (2024) 2 ILRA 1387
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-06
- **Case number:** Criminal Appeal No. 1877 of 2008
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/daya-ram-anr-v-state-of-u-p-51256
- **Pages:** 4

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-
Section
446
-
Appellants
challenged
orders
dated
30.06.2008
and
02.08.2008
forfeiting
their surety bonds of Rs.10,000/- each by
Additional
District
Judge/Fast
Track
Court-III, Faizabad, under Section 446
CrPC, in Criminal Misc. Case No. 8 of 2008,
arising from Sessions Trial Nos. 29/2008
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
(Sections 41/411/413 IPC) and 27/2008
(Section 4/25 Arms Act). Court held: (1)
Appellants, sureties for accused Ram
Ashish, made diligent efforts to trace and
ensure his arrest after his non-appearance
in April 2008. (2) Accused was arrested on
17.07.2008 due to sureties' efforts and
discharged by trial court on 25.07.2008.
(3)
Considering
appellants'
efforts,
discharge
of
accused,
and
16-year
pendency of appeal, a lenient view was
justified. Orders forfeiting surety bonds
set aside; appeal allowed. (Paras 9-11)

Appeal Allowed.

## Text

2 All. Daya Ram & Anr. Vs. State of U.P.
1387
as the case may be, for production of
property, before any Court to which the
case may subsequently be transferred.

(2) If sufficient cause is not
shown and the penalty is not paid, the
Court may proceed to recover the same as
if such penalty were a fine imposed by it
under this Code. 1 provided that where
such penalty is not paid and cannot be
recovered in the manner aforesaid, the
person so bound as surety shall be liable,
by order of the Court ordering the recovery
of the penalty, to imprisonment in civil jail
for a term which may extend to six months.

(3) The Court may, at its
discretion, remit any portion of the penalty
mentioned and enforce payment in part
only.

(4) Where a surety to a bond dies
before the bond is forfeited, his estate shall
be discharged from all liability in respect of
the bond.

(5) Where any person who has
furnished security under section 106 or
section 117 or section 360 is convicted of
an offence the commission of which
constitutes a breach of the conditions of his
bond, or of a bond executed in lieu of his
bond under section 448, a certified copy of
the judgment of the Court by which he was
convicted of such offence may be used as
evidence in proceedings under this section
against his surety or sureties, and,; if such
certified copy is so used, the Court shall
presume that such offence was committed
by him unless the contrary is proved."

11. Considering the overall facts and
circumstances of the case and also the
argument of learned counsel for the
appellants that the accused of the instant
case has been discharged from the offence
by learned trial court, the present criminal
appeal is allowed and orders dated
30.06.2008 and 02.08.2008 passed by
learned Additional District Judge / Fast
Track Court-III, Faizabad exercising the
power under Section 446 Cr.P.C. in
Criminal Misc. Case No.7 of 2008, initiated
in Original Sessions Trial No.29/2008,
under Sections 41/411/413 I.P.C. connected
with Sessions Trial No.27 of 2008, under
Section 4/25 of Arms Act, Police Station
G.R.P., District Faizabad by means of
which the surety bonds of the appellants
have been forfeited, are hereby set aside.

12. A certified copy of this order be
sent to the court concerned for necessary
compliance.

13. Lower court record, if any, shall
also be sent back to the court concerned.
----------
(2024) 2 ILRA 1387
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1877 of 2008

Daya Ram & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Abhishek Ranjan

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
446
-
Appellants
challenged
orders
dated
30.06.2008
and
02.08.2008
forfeiting
their surety bonds of Rs.10,000/- each by
Additional
District
Judge/Fast
Track
Court-III, Faizabad, under Section 446
CrPC, in Criminal Misc. Case No. 8 of 2008,
arising from Sessions Trial Nos. 29/2008
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
(Sections 41/411/413 IPC) and 27/2008
(Section 4/25 Arms Act). Court held: (1)
Appellants, sureties for accused Ram
Ashish, made diligent efforts to trace and
ensure his arrest after his non-appearance
in April 2008. (2) Accused was arrested on
17.07.2008 due to sureties' efforts and
discharged by trial court on 25.07.2008.
(3)
Considering
appellants'
efforts,
discharge
of
accused,
and
16-year
pendency of appeal, a lenient view was
justified. Orders forfeiting surety bonds
set aside; appeal allowed. (Paras 9-11)

Appeal Allowed.

(Delivered by Hon'ble Shamim Ahmed, J.)

1. List of cases has been revised and
the case is being taken up in the revised call
for hearing.

2. Heard learned counsel for the
parties.

3. This is an appeal under Section 449
Cr.P.C. against the judgment and orders
dated 30.06.2008 and 02.08.2008 passed by
learned Additional District Judge / Fast
Track Court-III, Faizabad exercising the
power under Section 446 Cr.P.C. in
Criminal Misc. Case No.8 of 2008, initiated
in Original Sessions Trial No.29/2008,
under Sections 41/411/413 I.P.C. connected
with Sessions Trial No.27 of 2008, under
Section 4/25 of Arms Act, Police Station
G.R.P., District Faizabad by means of
which the surety bonds of the appellants
have been forfeited.

4. Learned counsel for the appellant
submitted that in the above F.I.R., the
accused Ram Ashish was implicated and he
was enlarged on bail by the learned court
below. He further submitted that the
accused is son of the servant of appellants,
as such, the appellants took the surety of
accused Ram Ashish and submitted the
surety bonds of Rs.10,000/- each.

5. He further submitted that in the
month of April, 2008, due to non
appearance of accused Ram Ashish before
the trial court, the learned court below
issued notices to sureties i.e. the instant
appellants and after getting the knowledge
of the same, the appellants appeared before
the learned trial court on 21.04.2008 and
sought some time to trace and produce the
accused Ram Ashish before it.

6. He further submitted that on
02.05.2008 and 12.05.2008, one of the
appellants moved an application before the
learned trial court and informed the
location of accused Ram Ashish and
requested to direct the concerned police
station to arrest the accused Ram Ashish,
but the learned trial court ignoring the fact
that the appellants i.e. sureties are doing
their best efforts to trace the accused Ram
Ashish, had passed the impugned order to
forfeit the surety bonds of the appellants.

7. He further submitted that on
17.07.2008, the accused Ram Ashish was
arrested due to efforts of sureties and was
sent to jail. He further submitted that the
learned trial court had discharged the
accused Ram Ashish vide order dated
25.07.2008. Thereafter, the appellants i.e.
the sureties moved an application on
26.07.2008 before the learned trial court for
recalling of the order of forfeiting the
surety bonds but the learned trial court has
rejected the same.

8. Learned counsel for the appellant
further submitted that he does not want to
press the appeal on merits and since the
impugned order is of the year 2008 and the
2 All. Daya Ram & Anr. Vs. State of U.P.
1389
instant appeal is pending since 16 years,
thus, a lenient view be taken by this Court.

9. It is admitted that the appellants are
not the accused in the case. They stood
sureties and even the accused Ram Ashish
was arrested and sent to jail by the efforts
of
the
sureties
and
thereafter
was
discharged by the learned trial court.

10. The proceeding under Section 446
Cr.PC. is as follows:-

"(1) Where a bond under this
Code is for appearance, or for production
of property, before a Court and it is proved
to the satisfaction of that Court, or of any
Court to which the case has subsequently
been transferred, that the bond has been
forfeited, or where, in respect of any other
bond under this Code, it is proved to the
satisfaction of the Court by which the bond
was taken, or of any Court to which the
case has subsequently been transferred, or
of the Court of any Magistrate of the first
class, that the bond has been forfeited, the
Court shall record the grounds of such
proof, and may call upon any person bound
by such bond to pay the penalty thereof or
to show cause why it should not be paid.

Explanation.- A condition in a
bond for appearance, or for production of
property, before a Court shall be construed
as including a condition for appearance, or
as the case may be, for production of
property, before any Court to which the
case may subsequently be transferred.

(2) If sufficient cause is not
shown and the penalty is not paid, the
Court may proceed to recover the same as
if such penalty were a fine imposed by it
under this Code. 1 provided that where
such penalty is not paid and cannot be
recovered in the manner aforesaid, the
person so bound as surety shall be liable,
by order of the Court ordering the recovery
of the penalty, to imprisonment in civil jail
for a term which may extend to six months.

(3) The Court may, at its
discretion, remit any portion of the penalty
mentioned and enforce payment in part
only.

(4) Where a surety to a bond dies
before the bond is forfeited, his estate shall
be discharged from all liability in respect of
the bond.

(5) Where any person who has
furnished security under section 106 or
section 117 or section 360 is convicted of
an offence the commission of which
constitutes a breach of the conditions of his
bond, or of a bond executed in lieu of his
bond under section 448, a certified copy of
the judgment of the Court by which he was
convicted of such offence may be used as
evidence in proceedings under this section
against his surety or sureties, and,; if such
certified copy is so used, the Court shall
presume that such offence was committed
by him unless the contrary is proved."

11. Considering the overall facts and
circumstances of the case and also the
argument of learned counsel for the
appellants that the accused of the instant
case has been discharged from the offence
by learned trial court, the present criminal
appeal is allowed and orders dated
30.06.2008 and 02.08.2008 passed by
learned Additional District Judge / Fast
Track Court-III, Faizabad exercising the
power under Section 446 Cr.P.C. in
Criminal Misc. Case No.8 of 2008, initiated
in Original Sessions Trial No.29/2008,
under Sections 41/411/413 I.P.C. connected
with Sessions Trial No.27 of 2008, under
Section 4/25 of Arms Act, Police Station
G.R.P., District Faizabad by means of
which the surety bonds of the appellants
have been forfeited, are hereby set aside.
1390 INDIAN LAW REPORTS ALLAHABAD SERIES

12. A certified copy of this order be
sent to the court concerned for necessary
compliance.

13. Lower court record, if any, shall
also be sent back to the court concerned.
----------
(2024) 2 ILRA 1390
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1951 of 2008

Dharmendra Kumar Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ajay Pratap Singh

Counsel for the Respondent:
G.A.

Criminal Law - Code of Criminal Procedure,
1973 - Section 446 - Appellant challenged
orders dated 17.03.2008 and 18.08.2008
forfeiting his surety bond of Rs.20,000/- and
imposing 6 months' imprisonment in default
under Section 446 CrPC by Additional Sessions
Judge/F.T.C.-5th, Faizabad, in Criminal Misc.
Case No. 03/08, arising from Sessions Trial
No. 114/97 (Sections 147, 148, 149, 302 IPC).
Court held: (1) Forfeiture orders justified due
to accused Radhey Shyam's non-appearance,
but appellant ensured accused's surrender on
24.07.2008. (2) Appellant, a surety, not an
accused, and served 11 days' imprisonment.
(3) Considering accused's surrender and
appellant's
brief
incarceration,
sentence
modified
to
period
already
undergone.
Conviction upheld; sentence reduced; appeal
partly allowed. (Paras 9-11)

Appeal Partly Allowed.

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Ajay Pratap Singh, learned
counsel for the appellant and Sri Ashok Kumar
Srivastava, learned A.G.A. for the State and
perused the material available on record.

2. This is an appeal under Section 449
Cr.P.C. against the judgment and order dated
18.08.2008 in Criminal Misc. Case No. 03/08
(State Vs. Dharmendra Kumar Singh), under
Section 446 Cr.P.C., Police Station Kotwali
Ayodhya and against the judgment and order
dated 17.03.2008 passed by learned Additional
Session Judge/F.T.C.-5th, Faizabad in Sessions
Trial No. 114/97, arising out of Case Crime No.
1497/97 : State Vs. Radhey Shyam and others,
under Sections 147, 148, 149 and 302 I.P.C.,
Police Station Kotwali Ayodhya, Faizabad.

3. Learned counsel for appellant has
submitted that on 07.07.2005 the appellant had
taken surety of accused Radhey Shayam in
Sessions Trial No. 114/97, arising out of Case
Crime No. 1497/97 : State Vs. Radhey
Shyam and others, under Sections 147, 148,
149 and 302 I.P.C., Police Station Kotwali
Ayodhya, Faizabad and regarding this bond
of surety of Rs. 20,000/- was submitted
before the court concerned.

4. Learned counsel for appellant has
further submitted that when accused
Radheshyam did not appear before the
court, notice was issued to appellant
(surety) Dharmendra Kumar Singh under
Section 446 Cr.P.C., thereafter the court
below
vide
order
dated
17.03.2008
forfeited the surety of Rs.20000/- and
issued recovery warrant and in default of
payment, the trial court also imposed six
months imprisonment.

5. Learned counsel for appellant has
further submitted that the appellant filed
representation
for
quashing
of
the
proceedings initiated against him vide order