# Lakhan & Anr v. State of U.P

- **Citation:** (2024) 8 ILRA 55
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-28
- **Case number:** Criminal Appeal No. 553 of 2006
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-anr-v-state-of-u-p-52399
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 446 & 449 - Appeal -
against order of forfeiting the sureties -
appellant stood as sureties for the accused -
accused abscond - upon the accused's failure to
appear in court, the surety amount Rs. 10,000/-
was ordered to be forfeited - a recovery warrant
issued - application for reconsideration was
rejected - appeal - court find that, - appellants
took all possible steps to rectify the situation
after the accused failure to appear - they
demonstrated their commitment by bringing the
accused before the court as soon as practically
possible - this action reflects their sincere
intention to uphold their surety obligations and
the liability of the surety ended when the
accused surrendered - held, in the light of
appellants' genuine efforts and the eventual
surrender of the accused, the continuation of
the recovery proceedings for the surety amount
Rs. 10,000/- is found to be unjust and lacking
proper legal authority - accordingly, appeal is
allowed - direction issued accordingly. (Para -
19, 20, 21, 22)
56 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal is allowed. (E-11)

List of Cases cited:

Patan Jamal Vali Vs the St. of Adhara Pradesh -
(2021 vil. 16 SCC 225).

## Text

8 All. Lakhan & Anr. Vs. State of U.P.
55

64. The Parliament Standing
Committee Report on Atrocities Against
Women and Children has observed that,
"high acquittal rate motivates and boosts
the confidence of dominant and powerful
communities for continued perpetration"
and recommends inclusion of provisions of
the SC & ST Act while registering cases of
gendered violence against women from the
SC & ST communities. However, as we
have noted, one of the ways in which
offences against SC & ST women fall
through the cracks is due to the evidentiary
burden that becomes almost impossible to
meet in cases of intersectional oppression.
This is especially the case when courts tend
to read the requirement of "on the ground"
under Section 3(2)(v) as "only on the
ground of". The current regime under the
SC & ST Act, post the amendment, has
facilitated the conduct of an intersectional
analysis under the Act by replacing the
causation
requirement
under
Section
3(2)(v) of the Act with a knowledge
requirement making the regime sensitive to
the kind of evidence that is likely to be
generated in cases such as these."

39. There is no evidence on record to
show that the offence of rape was
committed by the accused appellant on
account of the caste identity of the victim.
In the absence of any evidence in that
regard, we hold that the offence under
Section 3(2)(v) SC/ST Act is not made out
against
the
accused
appellant.
The
conviction and sentence of the accused
appellant under Section 3(2)(v) SC/ST Act
is, therefore, reversed.

40. Consequently, the present appeal
succeeds and is allowed. The judgement
and order of conviction and sentence dated
dated 8.1.2021, passed in Special Case
No.29 of 2009 (State Vs. Arun Mishra), is
set aside. The appellant Arun Mishra shall
be released from Jail, forthwith, unless he
is wanted in any other case, subject to
compliance of Section 437-A Cr.P.C.
----------
(2024) 8 ILRA 55
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 553 of 2006

Lakhan & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Anil Kumar Singh

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 446 & 449 - Appeal -
against order of forfeiting the sureties -
appellant stood as sureties for the accused -
accused abscond - upon the accused's failure to
appear in court, the surety amount Rs. 10,000/-
was ordered to be forfeited - a recovery warrant
issued - application for reconsideration was
rejected - appeal - court find that, - appellants
took all possible steps to rectify the situation
after the accused failure to appear - they
demonstrated their commitment by bringing the
accused before the court as soon as practically
possible - this action reflects their sincere
intention to uphold their surety obligations and
the liability of the surety ended when the
accused surrendered - held, in the light of
appellants' genuine efforts and the eventual
surrender of the accused, the continuation of
the recovery proceedings for the surety amount
Rs. 10,000/- is found to be unjust and lacking
proper legal authority - accordingly, appeal is
allowed - direction issued accordingly. (Para -
19, 20, 21, 22)
56 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal is allowed. (E-11)

List of Cases cited:

Patan Jamal Vali Vs the St. of Adhara Pradesh -
(2021 vil. 16 SCC 225).

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

1. Heard learned counsel for the
parties and perused the material available
on record.

2. This appeal is filed under Section
449 of the Criminal Procedure Code
(Cr.P.C.) against the judgment and order
dated 25.01.2006 passed by the court of
learned Additional Session Judge, Hardoi.

3. Learned counsel for appellants has
submitted that the appellants stood as
sureties for the accused in Criminal Case
No. 199/97. Upon the accused's failure to
appear in court, the surety amount of Rs.
10,000/- was ordered to be forfeited. The
learned Additional Session Judge, Hardoi,
issued a recovery warrant for the said
amount
through
the
order
dated
25/01/2006,
rejecting
the
appellants'
application for reconsideration

4. Learned counsel for appellants has
further submitted that as soon as the
appellants received the information about
the abscond of the accused, they made their
best efforts to surrender the accused before
the court.

5. Learned counsel for appellants has
further submitted that the order dated
25/01/2006
passed
by
the
learned
Additional Session Judge, Hardoi, is
unjustified both in law and in fact.

6. Learned counsel for appellants has
further submitted that the learned court
below failed to appreciate the relevant facts
of the case, leading to the issuance of the
recovery warrant against the appellants.
The liability of the surety ended when the
accused, Mahendra, surrendered before the
concerned court on 16.11.2005 at District
Jail Hardoi.

7. Learned counsel for appellants has
further submitted that the appellants made
several efforts to produce the accused
before the court but were unable to do so
due to his illness and ongoing treatment at
various places. The learned Additional
Session Judge did not adequately consider
these facts and wrongly rejected the
application filed by the appellants.

8. Learned AGA submitted that the
purpose of Section 446 Cr.P.C. is to ensure
compliance with court orders and secure
the
presence
of
the
accused.
The
attachment of property serves as a deterrent
against non-compliance and a mechanism
to enforce the surety's obligation.

9. The learned AGA Submitted that
the order of the learned Additional Session
Judge, Hardoi, stating that the surety
amount was forfeited due to the appellants'
failure
to
produce
the
accused
as
required.The government maintains that the
recovery proceedings for the surety amount
are in accordance with the law and should
be upheld.

10. Learned AGA further submitted
that the trial court took the correct approach
in rejecting the appellants' application,
considering the procedural requirement for
enforcing surety obligations and ensuring
justice is upheld. The trial court exercised
discretion
based
on
the
existing
circumstances, and there was no manifest
error in its decision-making process.
8 All. Lakhan & Anr. Vs. State of U.P.
57

11. I have heard the learned counsel
for the appellants and the learned AGA for
the State.

12. In light of the arguments
presented and the facts established, it is
evident that the appellants acted diligently
to comply with their surety obligations and
took all possible steps to ensure the
presence of the accused before the court.

13. The court finds that the appellants
made sincere efforts to produce the accused
before the court, as evidenced by their
actions and attempts to locate him despite
his illness and treatment. The surrender of
the
accused,
Mahendra,
before
the
concerned court on 16.11.2005, effectively
ended the liability of the surety.

14.

The
accused,
Mahendra,
surrendered before the concerned court on
16.11.2005 at District Jail Hardoi. This
surrender is a critical event that should
have been duly considered by the lower
court. The surrender of the accused
effectively ended the liability of the
sureties, as their primary obligation was to
ensure the accused's appearance in court.

15. Section 446 of the Criminal
Procedure Code (Cr.P.C.) deals with the
forfeiture of bonds given by individuals
(sureties)
in
criminal
proceedings,
particularly when there is a failure to
comply with the conditions of the bond.
This section outlines the procedure for
handling situations where a surety bond is
forfeited, including the consequences and
recovery methods. a detailed explanation:

Section 446 Cr.P.C.

"When a bond is forfeited under
this Code, the Court may, in its discretion,
issue a warrant for the recovery of the
penalty or may, after giving the surety an
opportunity of being heard, order the surety
to pay the penalty or show cause why it
should not be paid. If the surety fails to
show cause or fails to pay the penalty, the
Court may proceed to recover the penalty
as if it were a fine imposed under this
Code."

Scope: Section 446 applies to
bonds taken under the Cr.P.C. for ensuring
appearance in court or compliance with
other conditions. It comes into play when a
surety bond is forfeited, which typically
occurs if the conditions of the bond are not
met.

Court's Discretionary Powers:

Issuing a Warrant: The court
has the discretion to issue a warrant for the
recovery of the forfeited penalty. This
means that if a bond is forfeited, the court
can take active steps to recover the penalty
amount from the surety.

Opportunity
to
Be
Heard:
Before taking any recovery action, the
court must give the surety an opportunity to
be heard. This ensures that the surety can
explain any reasons for their failure to
comply with the bond conditions or present
any mitigating circumstances.

Show Cause or Order to Pay :

Show Cause: The court may also
require the surety to show cause why the
penalty should not be paid. This means the
surety must provide reasons or evidence as
to why they should not be held financially
liable for the forfeiture.

Order for Payment: The court
may order the surety to pay the forfeited
penalty. This order will be issued after
considering the surety's explanation and the
circumstances surrounding the forfeiture.

Procedure: If the surety fails to
show a valid cause or does not pay the
penalty, the court can proceed to recover
the penalty as if it were a fine imposed
58 INDIAN LAW REPORTS ALLAHABAD SERIES
under the Cr.P.C. This means that the court
can use standard methods for recovering
fines to collect the forfeited amount.

Enforcement:
The
recovery
process can include various methods such
as
attachment
of
property
or other
enforcement measures available under the
law.

When a bond is forfeited, the
court must follow the procedures outlined
in Section 446. This includes issuing a
warrant for recovery if necessary, giving
the surety a chance to explain their noncompliance, and then proceeding with
recovery if the surety fails to provide a
valid cause.

16. The appellants faced unforeseen
circumstances due to the accused illness,
which prevented them from producing him
in court within the stipulated time. These
circumstances were beyond the control of
the appellants. The appellants provided
detailed explanations and evidence of their
efforts, including medical reports and
treatment
records,
which
were
not
sufficiently considered by the learned
Additional Session Judge.

17. The appellants submitted an
application
to
the
concerned
court,
explaining the reasons for their inability to
produce the accused and requesting relief
from the forfeiture of the surety amount.
The learned Additional Session Judge,
however, did not adequately consider these
explanations and circumstances, resulting
in an unjust order against the appellants.

18. In the interest of justice and fair
play, it is crucial to recognize that the
appellants
have
complied
with
their
obligations and have made sincere efforts
to correct the situation. The continued
attachment
of
their
property
is
disproportionate to the intended purpose of
ensuring compliance.

Justice
is
not
merely
the
application of law but a reflection of its
spirit, which seeks to balance legal
mandates with human realities. In this case,
we confront the tension between strict
adherence to procedural requirements and
the equitable treatment of individuals who
act in good faith.

19. In the present matter, the
appellants took all possible steps to rectify
the situation after the accused failure to
appear.
They
demonstrated
their
commitment by bringing the accused
before the court as soon as practically
possible. This action reflects their sincere
intention to uphold their surety obligations
and the liability of the surety ended when
the accused, Mahendra, surrendered before
the concerned court on 16.11.2005 at
District Jail Hardoi.

20. Based on the above analysis, it is
evident that the order dated 25.01.2006
passed by the learned Additional Session
Judge, Hardoi, was not justified either in
law or on the facts of the case. The
appellants made sincere and diligent efforts
to fulfill their obligations as sureties, and
the
unforeseen
circumstances
of
the
accused's illness and subsequent surrender
were beyond their control.

21. In light of the appellants' genuine
efforts and the eventual surrender of the
accused, the continuation of the recovery
proceedings for the surety amount of Rs.
10,000/- is found to be unjust and lacking
proper legal authority.

22. Accordingly, the appeal is
allowed and the impugned order dated
8 All. Ankit Punia Vs. State of U.P.
59
25.01.2006
passed
by
the
learned
Additional Session Judge, Hardoi is hereby
set aside and reversed. The appellants are
relieved from the obligation to pay the
forfeited amount. The appellants are
discharged
from
their
obligations
as
sureties in this case.

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

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

25. Lower court record, if any, shall
also be sent back to the district court
concerned.
----------
(2024) 8 ILRA 59
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 940 of 2021

Ankita Punia ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Arun K. Deshwal, Sri Jitendra Kumar
Shishodia

Counsel for the Respondent:
Y, Y, G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 374(2) - Indian
Penal Code,1860 - Sections 302, 376, 458,
506
& 511
-
Scheduled
Caste
and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989 - Sections 3(2)5 - Appeal -
against conviction & sentence - accused
committed offence of rape, murder and threats
to the informant's Grand-mother who belongs to
a scheduled caste member - FIR - investigation
- victim who is aged about 100 years died
during treatment - arrest - charge-sheet - in
defence, plea taken that, accused appellant
taken a loan from the informant and when he
failed to returned it they lodged a false FIR so
that they will success in getting monetary relief
under the victim compensation scheme from
govt. - court finds that, (i) contradiction in
testimony of witness, (ii) in medical evidences -
no sign of any external force of being used, no
sign of nay external injury, cause of death is
'septic Simia shock', (iii) no any report of vaginal
semen nor any blood matching report, (iv) no
any recovery nor any independent witnesses (v)
prosecution witness accepted that they got 8 lacs
rupees form the govt. - held, prosecution is failed
to stablished offence committed by the accused
appellant beyond reasonable doubt - Perhaps
charges of murder & sexual assault was imposed
just to get money from the government -
consequently, the conviction and sentence of the
accused appellant is reversed - Appeal is allowed -
conviction and sentence is set aside - direction
issued accordingly. (Para - 19, 20, 21, 22)

Appeal is allowed. (E-11)

(Delivered by Hon'ble Dr. Gautam
Chowdhary, J.)

1- अपीलार्थी की ओर से यह दाण्डिक
अपील, मु०अ०सं० 550 सन 2017 अन्तर्गत
धारा 458, 376, 302, 506 भा०८०वि०, र्थाना
जानी, ण्जला मेरठ से उद्‌भूत दाण्डिक िाद सं०
01
सन
2018
में
विशेष
न्यायाधीश
(एस०सी०/एस०टी० ऐक्ट) मेरठ दिारा पाररत
ननर्गय दद० 20-11-2020, ण्जसके दिारा
अपीलार्थी/अभभयुक्त अककत पूननया को धारा
302 भा०दं०वि० के अपराध में आजीिन
कारािास एिं रू० 25,000/- अर्थगदडि से तर्था