# Preetam Singh v. State of U.P. Opp. Party

- **Citation:** (2013) 2 ILRA 624
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-16
- **Bench:** Anil Kumar Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/preetam-singh-v-state-of-u-p-opp-party-42604
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 446(3)-
application to refund security amountrejected by trail court-surety bond of
appellant
forfeited
as
the
accused
absconded-appellant
deposited
surety
amount without protest-after being arrest
of accused person-application for refundheld misconceived without challenge of
forfeiture order-appeal dismissed.

Held: Para-9
It is pertinent to note here that the
appellant did not challenge the order
passed by the trial court on 7.3.2008,
whereby their surety bonds were forfeited
by the trial court. The appellant can not
challenge that order in this appeal, because
they have voluntarily deposited the amount
of penalty in the Court on 19.4.2008.

Case Law discussed:
2008(63) ACC 265

## Text

624 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

18. The petition lacks merit and is
accordingly dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2013

BEFORE
THE HON'BLE ANIL KUMAR SHARMA, J.

Criminal Appeal No. 6338 Of 2009

Preetam Singh
 ...Appellant
Versus
State of U.P. Opp. Party

Counsel for the Appellant:
Sri P.S. Pundir
Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section 446(3)-
application to refund security amountrejected by trail court-surety bond of
appellant
forfeited
as
the
accused
absconded-appellant
deposited
surety
amount without protest-after being arrest
of accused person-application for refundheld misconceived without challenge of
forfeiture order-appeal dismissed.

Held: Para-9
It is pertinent to note here that the
appellant did not challenge the order
passed by the trial court on 7.3.2008,
whereby their surety bonds were forfeited
by the trial court. The appellant can not
challenge that order in this appeal, because
they have voluntarily deposited the amount
of penalty in the Court on 19.4.2008.

Case Law discussed:
2008(63) ACC 265

(Delivered by Hon'ble Anil Kumar Sharma,J.)

1. Heard learned counsel for the
appellant, learned AGA for the State and
perused the impugned order as also the
papers filed along with the appeal.

2. The appellant challenges the order
dated 2.9.2009, passed by learned Addl.
Sessions
Judge
Court
No.2,
Muzaffarnagar in Criminal Misc. Case
No. 11 of 2008, State Vs. Preetam Singh
under section 446 Cr.P.C. by which his
application for refund of surety amount
had been rejected.

3. It appears that the appellant stood
surety for accused Maisar alias Rameshwar
for a sum of Rs. 30,000/-. The accused
absconded, the surety bond of the appellant
was forfeited and recovery warrant for the
aforesaid amount was issued against him. This
amount was deposited by the appellant before
the trial court on 19.4.2008, through an
application for permission to deposit the
amount. Since the amount was paid by both
the sureties under section 446 Cr.P.C. the
proceedings were closed and the file was
consigned to the record room. On 25.8.2008,
the appellant produced the accused in the
Court in S.T. No. 875 of 2008 and
accordingly he was sent to jail. The same day
the appellant filed an application stating that
since he has produced the accused the amount
of penalty deposited by him be refunded, but
the same was rejected by the trial court
through the impugned order dated 2.9.2009.

4. Learned AGA has argued that the
instant appeal is not maintainable as the
impugned order is not an order passed by
the trial court under section 446 Cr.P.C.

5. Per contra, learned counsel for the
appellant
has
submitted
that
the
application of the appellant is under
section 446 (3) Cr.P.C., so the appeal is
maintainable.

6. Perusal of papers filed by the
appellant shows that it is not disputed that the
appellant stood surety for a sum of Rs.
30,000/- for accused Maisar alias Rameshwar
2 All] Preetam Singh Vs. State of U.P.
625
pertaining to a case under section 147,148,
452, 504, 323, 308 IPC and Section 3 (1) (x)
of SC/ST Act. It is also not disputed that
accused absconded and the surety bonds of
the appellant were forfeited by the trial court
vide order dated 7.3.2008. The appellant has
not filed complete order sheet of S.T. 875 of
2007. Another accused Km. Pinki was in jail
and co-accused Km. Pooja was also absent.
The wife of accused Maisar complained to the
Court on 7.8.1988 that her husband was
kidnapped by his sureties and he is in their
possession. The order dated 7.8.2008 further
reveals that the sureties of accused Maisar had
filed an application on 14.9.2007 for their
discharge but the same was rejected by the
Court on account of their absence. It means
that accused Maisar was not appearing in the
Court much before on 4.9.2007. The appellant
has also not filed the application dated
19.8.2008, whereby he sought permission of
the Court to deposit the amount of penalty
amouting to Rs. 30,000/-. It appears that he
has acquiesced with the order of imposing
penalty against him and without protest he
deposited the same in the Court. After deposit
of the penalty amount the proceedings under
section 446 Cr.P.C. were closed and the file
was consigned to the record room.

7. No doubt Section 446 (3) Cr.P.C.
provides that "the Court may after
recording its reasons for doing so, remit
any portion of penalty mentioned and
enforce payment in part only." This
specific provision stipulates that the
prayer for remission can be made before
depositing the amount of penalty. The
word 'remit' means to transmit (money) in
payment; to refrain from exacting (tax or
penalty for example) counsel; to pardon,
forgive to put off, postpone, to diminish,
abate. The word remit can not be
construed to mean refund. Had there been
any intention of the Legislature that the
amount of penalty deposited by the surety
voluntarily
without
protest
can
be
refunded under the provisions of Section
446 Cr.P.C. then the word 'refund' would
have also found place along with word
'remit'
in
alternative.
In
these
circumstances it can not be said that the
impugned order falls within the purview
of Section 446 (3) Cr.P.C.

8. Learned counsel for the appellant
placed reliance on the case of Jagnnath
and another Vs. State of U.P. 2008 (63)
ACC 265. In this case the sureties before
forfeiture of their surety bonds filed
application before the Court that they
have got the accused arrested by the
police, so they should be discharged. This
application was rejected by the trial court.
This Court in appeal by the appellants
directed the trial court to reconsider the
application of the appellant and pass
suitable order thereon on merit in
accordance with the requirements of
Section 446 (1) Cr.P.C. This case on
account of distinguished facts does not
help the case of the appellant at all.

9. It is pertinent to note here that the
appellant did not challenge the order passed
by the trial court on 7.3.2008, whereby their
surety bonds were forfeited by the trial court.
The appellant can not challenge that order in
this appeal, because they have voluntarily
deposited the amount of penalty in the Court
on 19.4.2008.

10. Learned counsel for the
appellant could not inform the Court as to
since
when
accused
Maisar
alias
Rameshwar was absent from the Court on
the date fixed in the case.

11. In view of above discussion, in
my opinion, the application of the
626 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
appellant for refund of penalty amount
has been rightly rejected by the trial court
through the impugned order. The appeal
sans merit and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.04.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No. 8363 Of 2010

Surya Prakash Tiwari And Ors.Petitioners
Versus
State of U.P.
 ...Respondent

Counsel for the Petitioners:
Sri Ramesh Pandey

Counsel for the Respondent:
C.S.C.

U.P. Irrigation Department Regularization
of Part Time Tube well operators on post
of Tube -well operators Rules 1996-as
amended by amendment Rules 2008
notifed on 05.05.08- Rule 4-Regularization
of part time tube-well operators-regular
selection list notified on 09.09.1994appointment letter could be issued only on
25.05.06 when send on training-hence
such appointment can not be treated to be
made prior to the cut off date e.g.
30.06.98-can not be regularized-petition
dismissed.

Held: Para-29
In
the
instant
case,
although,
the
petitioners were selected for appointment
on the post in question and their names
find place in the select list published on
09.09.1994 but the order for appointment
on the post in question has been issued in
the year 2005-2006 after completing all
the necessary formalities, so their actual
date of appointment in the Department is
the date on which they were appointed on
the post in question (i.e. in the year 20052006) and not 09.09.1994, when the select
list was published. Hence, the petitioners
were not appointed on the post of part
time Tube Well Operators before 30, June,
1998, as per the rule 4 of Regularization
Rules 1996. Thus, there is no illegality or
infirmity in the impugned order dated
21.04.2004 passed by Engineer in Chief
and the petitioner cannot claim any benefit
from the letter/order dated 17.03.2005 or
on the basis of the argument advanced on
their behalf in view of the judgment
passed by this Court in the case of Indra
Kumar Singh (Supra). So, the same is not
applicable in the facts and circumstance of
the present case.

Case Law discussed:
208(26) LCD 280; [2006 (4) SCC 1; 1993 (1)
SCC 360

(Delivered by Hon'ble Anil Kumar, J)

1. Heard Sri Ramesh Pandey, learned
counsel for petitioners, Sri A.N. Trivedi,
learned Additional Chief Standing Counsel
and perused the record.

2...On07.12.1993, an advertizement was
issued/published for selection/appointment on
the
post
of
Part-Time
Tube
Well
Operator/Assistant Tube Well Operator. In
response to the said advertizement, the
petitioners and other candidates submitted
their candidature, appeared in the written test
as well as interview.

3. On 09.09.1994, the select-list was
declared. However, in the meantime,
against the judgment and order dated
18.05.1994 passed in Writ Petition No.
3538 of 1992 (Suresh Chand Tiwari Vs.
State of U.P. and others), a Special Leave
Petition No. 16219 of 1992 was filed before
Hon'ble the Supreme Court in which an
interim order dated 18.03.1994 was passed,
as a result of which, an order dated
04.10.1994 (Annexure No. 3) has been
issued
by
the
Engineer-in-Chief,