# Dharmendra Kumar Singh v. State of U.P

- **Citation:** (2024) 2 ILRA 1390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-08
- **Case number:** Criminal Appeal No. 1951 of 2008
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-singh-v-state-of-u-p-51258
- **Pages:** 3

## Headnote

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.

## Text

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
2 All. Dharmendra Kumar Singh Vs. State of U.P.
1391
dated 17.03.2008 stating therein that on
24.07.2008 the appellant produced the
accused Radhey Shyam before the Court
and the accused was sent to jail.

6. Learned counsel for appellant has
further submitted that without considering
the averments of the appellant and
considering that the accused has already
been surrendered before the court below
and sent to jail, the trial court vide order
dated
18.08.2008
disposed
of
the
representation of the appellant and send the
appellant to jail for six months, in default
of payment of surety, with the observation
that if the surety deposited the surety
amount, he shall be released from jail.

7. Learned counsel for the appellant
has further submitted that thereafter the
appellant filed the instant Criminal Appeal
for quashing of the impugned orders and
prayed for bail and this Court vide order
dated
29.08.2008
allowed
the
bail
application of appellant, thus the appellant
was in jail about eleven days.

8. Learned counsel for the appellant
has further submitted that the appellant is
not the accused in this case. He stood
surety and proceeding under Section 446
Cr.P.C. 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."
1392 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Learned counsel for appellant has
further submitted that since the appellant
was 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 accused
Radhey Shyam appeared and surrendered
before the court concerned on 24.07.2008 and
he is facing trial, therefore, the sentence of
surety appellant Dharmendra Kumar Singh be
reduced to the period already undergone by
him.

10. Learned A.G.A. submits that it was
the duty of the surety to ensure that accused was
appearing in the Court on each and every date.
Sureties have failed to ensure it because
accused did not appear in Court, hence the court
below had no option but to pass the impugned
orders, thus the learned court below had rightly
passed the impugned orders dated 18.08.2008
and 17.03.2008, but did not dispute this fact that
appellant was 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 accused Radhey Shyam
appeared and surrendered before the court
concerned, therefore, the sentence of surety
appellant Dharmendra Kumar Singh may be
reduced to the period already undergone by
him.

11. After considering the arguments
advanced by learned counsel for the parties and
after perusal of record, this Court finds that the
appellant is the surety of accused Radheshyam,
when accused Radheshyam did not appear
before the court, the court below had no option
but to pass the impugned orders, thus the
learned court below had rightly passed the
impugned orders dated 18.08.2008 and
17.03.2008, which do not require any
interference by this Court, thus the conviction
of the appellant is maintained.

So far as the sentence of the appellant is
concerned, as the accused Radhey Shyam had
appeared and surrendered before the
court concerned and the appellant had
already undergone sentence for eleven
days in compliance of the order dated
18.08.2008 and 17.03.2008 passed by
the court below, considering the entire
facts and circumstances of the case, in
the interest of justice, this Court is of
the view that the sentence is modified
for
the
period
which
is
already
undergone by the appellant.

12. With the above modification, the
instant criminal appeal is partly allowed.

13. A certified copy of the order be also
sent to the court concerned for compliance.

14. Office is directed to communicate this
order to the court concerned for necessary
compliance.

15. Lower court record, if any, shall also
be sent back to the district court concerned.
----------
(2024) 2 ILRA 1392
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 2197 of 2017

Ram Chandra ...Appellant
Versus
State of U.P. ...Respondent