# Mahmood Hasan v. State reported in - **Citation:** (2012) 3 ILRA 1428 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-11-26 - **Bench:** Arvind Kumar Tripathi (Ii - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahmood-hasan-v-state-reported-in-42446 - **Pages:** 2 ## Headnote Code of Criminal Procedure-Section 167 (2) proviso-Bail application expressing willingness to furnish security forrejected by Magistrate saying charge sheet filed on same day hence right to be released on-extinguished-application rejected as not maintainable-not vitiated in any manner-no illegality or impropriety on jurisdictional error foundrevision dismissed. Held: Para-18 To test the aforesaid submission of the learned counsel for the revisionists, I have carefully read the counter-affidavit dated 03.09.2012 filed by Devi Ram Gautam, the Investigating Officer, on behalf of the State. A perusal of the counter-affidavit indicates that the investigation was completed as well as the charge-sheet prepared by 31.03.2012. Thereafter by the order of the Senior Superintendent of Police, Ghaziabad, the Investigating Officer was transferred on 02.04.2012. It appears that the Constable Pairokar, Jarman Singh, had directly submitted the charge-sheet in court on 02.05.2012 and the court also took cognizance on the said charge-sheet. From the affidavit so filed, it cannot be said that the chargesheet was incomplete. Even otherwise, there is no challenge to the charge-sheet either in the revision or by way of any collateral proceedings. As regards the direct filing of the charge-sheet, through a Constable, it may be an irregularity, but it would certainly not vitiate the charge-sheet and the order taking cognizance thereon. Case Law discussed: (2001) 5 SCC 453; [2011 (72) ACC 767]; [2011 (75) ACC 134]; [2011 (75) ACC 992]; (1996) 1 SCC 432; (1994) 5 SCC 410; 1997JIC-0-127 ## Text 1428 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 26.11.2012 BEFORE THE HON'BLE ARVIND KUMAR TRIPATHI (II), J. Criminal Appeal No. - 1097 of 2005 Malhoo and another ...Applicant Versus The Iind Addl.Session Judge,Sultanpur.& Another ...Respondents Counsel for the Petitioner: Sri Hrish Chandra Counsel for the Respondents: Govt. Advocate Code of Criminal Procedure-Section 446recovery of sureties amount-without recording satisfaction for forfeiture of sureties amount-without show cause notice before passing recovery order-held-order not sustainable-quashed. Held: Para-6 A perusal of the impugned order again reveals that no show cause notice to the sureties was issued, directing them to show cause as to why their sureties amount be not forfeited. Apex Court in the case of Ghulam Mehdi Vs. State of Rajasthan reported in A.I.R. 1960 SC 1185 and this Court in the case of Mahmood Hasan Vs. State reported in 1979 Cr.L.J. 1439 has held that Section 446 deals with two stages. The first stage requires the ground of satisfaction to be recorded by the Judge or Magistrate concerned for ordering forfeiture and after recording such forfeiture show cause is to be issued. An order for recovery can be made only on fulfilling the two steps contemplated by Section 446. Where no opportunity has been given to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance of law and should be quashed. Case Law discussed: A.I.R. 1960 SC 1185; 1979 Cr.L.J. 1439 (Delivered by Hon'ble Arvind Kumar Tripathi (II), J.) 1. List has been revised. 2. None appeared for the appellants Malhoo and Siraj Ahmad. Learned AGA is present. 3. Heard learned AGA and gone through the record. 4. This appeal has been filed against the order dated 2.8.2005 passed by the Additional Sessions Judge, Court No. 2, Sultanpur, in a proceeding under Section 446 Cr.P.C., by which bail bond of accused were forfeited and sureties were directed to deposit the security amount of Rs. 25,000/- of accused Raj Bahadur in Session Trial No. 251 A/95, under Section 302 I.P.C. of Police Station Kotwali Dehat, District Sultanpur. 5. A perusal of the impugned order, which is on record, reveals that the sureties were seeking time to produce the accused but they were not able to produce the accused persons in the court so in that continuation, on 2.8.2005, they again moved an application for time to produce accused persons. This application was rejected and warrant of realisation was issued against sureties Malhoo and Siraj Ahmad. 6. A perusal of the impugned order again reveals that no show cause notice to the sureties was issued, directing them to show cause as to why their sureties amount be not forfeited. Apex Court in the case of Ghulam Mehdi Vs. State of Rajasthan reported in A.I.R. 1960 SC 1185 and this Court in the case of Mahmood Hasan Vs. State reported 3 All] Pravin Kasana & Others V. State of U.P. 1429 in 1979 Cr.L.J. 1439 has held that Section 446 deals with two stages. The first stage requires the ground of satisfaction to be recorded by the Judge or Magistrate concerned for ordering forfeiture and after recording such forfeiture show cause is to be issued. An order for recovery can be made only on fulfilling the two steps contemplated by Section 446. Where no opportunity has been given to show cause why he should not be made to pay, the proceedings cannot be said to be in accordance of law and should be quashed. 7. In view of the above, the recovery order is liable to be quashed and hereby quashed. 8 The appeal is disposed of finally with a direction to the court concerned to issue show cause notice to the sureties to show cause as to why their sureties bond be not forfeited. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 05.11.2012 BEFORE THE HON'BLE MANOJ MISRA, J. Criminal Revision No. - 1557 of 2012 Pravin Kasana & Others ...Applicant Versus State Of U.P ...Respondents Counsel for the Petitioner: Sri Vijaya Prakash Counsel for the Respondents: Govt. Advocate Sri Sukhendu Pal Singh Sri Tej Pal Code of Criminal Procedure-Section 167 (2) proviso-Bail application expressing willingness to furnish security forrejected by Magistrate saying charge sheet filed on same day hence right to be released on-extinguished-application rejected as not maintainable-not vitiated in any manner-no illegality or impropriety on jurisdictional error foundrevision dismissed. Held: Para-18 To test the aforesaid submission of the learned counsel for the revisionists, I have carefully read the counter-affidavit dated 03.09.2012 filed by Devi Ram Gautam, the Investigating Officer, on behalf of the State. A perusal of the counter-affidavit indicates that the investigation was completed as well as the charge-sheet prepared by 31.03.2012. Thereafter by the order of the Senior Superintendent of Police, Ghaziabad, the Investigating Officer was transferred on 02.04.2012. It appears that the Constable Pairokar, Jarman Singh, had directly submitted the charge-sheet in court on 02.05.2012 and the court also took cognizance on the said charge-sheet. From the affidavit so filed, it cannot be said that the chargesheet was incomplete. Even otherwise, there is no challenge to the charge-sheet either in the revision or by way of any collateral proceedings. As regards the direct filing of the charge-sheet, through a Constable, it may be an irregularity, but it would certainly not vitiate the charge-sheet and the order taking cognizance thereon. Case Law discussed: (2001) 5 SCC 453; [2011 (72) ACC 767]; [2011 (75) ACC 134]; [2011 (75) ACC 992]; (1996) 1 SCC 432; (1994) 5 SCC 410; 1997JIC-0-127 (Delivered by Hon'ble Manoj Misra, J.) 1. I have heard Sri Vijaya Prakash for the revisionists, Shri Sukhendu Pal Singh for the informant and the learned A.G.A. for the State.