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

- **Citation:** (2024) 3 ILRA 1285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Criminal Appeal No. 134 of 2004
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sanehi-anr-v-state-of-u-p-51566
- **Pages:** 4

## Headnote

(A) Criminal Law - Appeal against order of
forfeiture of Surety Bond - Code of
Criminal Procedure, 1973 - Section 446 -
Procedure where bond has been forfeited
- Sureties liable for penalty if accused fails
to appear - Court has discretion to reduce
penalty under Section 446 Cr.P.C.. (Para
9,10,11)

Appellants were sureties for accused - Accused
jumped bail - leading to forfeiture of surety
bond - Appellants challenged order of forfeiture
and imposition of penalty -Accused surrendered
before court - Discretion of court to remit
penalty. (Para 4-5,10-11)

HELD: - Penalty amount reduced to the tune of
Rs. 4000/- in view of surrender of accused and
deposit of part amount by sureties. Appellants
directed to deposit reduced penalty within one
month.(Para 11-12)

Appeal partly allowed. (E-7)

## Text

3 All. Ram Sanehi & Anr. Vs. State of U.P.
1285
witnesses, even if taken on their face value,
fall short of the requirement of proof of the
charge beyond all reasonable doubt.

29. Consequently, contrary view taken
by the trial Court is against the weight of
the evidence on record and the exposition
of law attested by the decisions of Hon'ble
Supreme Court cited herein above. Thus,
on perusal of material placed on record and
discussions and observations made above,
it appears that the prosecution has failed to
establish its case beyond reasonable doubt
and the learned trial court has also not
applied its mind to appreciate and consider
the prosecution witnesses placed by the
prosecution in order to substantiate its case.

30. Thus, in view of the aforesaid
discussions/observations and the judgments
rendered by the Hon'ble Apex Court cited
hereinabove, the appeal is allowed. the
judgment and order dated 10.02.1998
passed by Special Judge (Anti Corruption),
U.P (West) Lucknow, in Case No.1/81
arising out of R.C. No.19/1979, convicting
the accused (now deceased) under Section
409 I.P.C. and Section 5(2) readwith
Section 5(1)(c) of the Prevention of
Corruption Act, 1947 and sentencing him to
undergo two years rigorous imprisonment
and a fine of Rs.18,000/- on each count, the
sentences of imprisonment directed to run
concurrently and in default of payment of
fine to undergo further imprisonment of six
months is set aside and reversed. The
accused, namely, Late P.K. Tondon, who
was the husband of the present appellant, is
acquitted of charges under Section 409
I.P.C. and Section 5(2) readwith Section
5(1)(c) of the Prevention of Corruption Act,
1947 and sureties, if any, are also
discharged.

31. Let record of trial Court be sent
back to Court concerned along with copy of
judgment and order for information.
----------
(2024) 3 ILRA 1285
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 134 of 2004

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

Counsel for the Appellants:
M.P. Yadav, Ajay Madhavan

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Appeal against order of
forfeiture of Surety Bond - Code of
Criminal Procedure, 1973 - Section 446 -
Procedure where bond has been forfeited
- Sureties liable for penalty if accused fails
to appear - Court has discretion to reduce
penalty under Section 446 Cr.P.C.. (Para
9,10,11)

Appellants were sureties for accused - Accused
jumped bail - leading to forfeiture of surety
bond - Appellants challenged order of forfeiture
and imposition of penalty -Accused surrendered
before court - Discretion of court to remit
penalty. (Para 4-5,10-11)

HELD: - Penalty amount reduced to the tune of
Rs. 4000/- in view of surrender of accused and
deposit of part amount by sureties. Appellants
directed to deposit reduced penalty within one
month.(Para 11-12)

Appeal partly allowed. (E-7)

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

1. Heard Sri M.P.Yadav, learned
counsel for the appellants and Sri Ashok
Kumar Srivastava, learned A.G.A. for the
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
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 5.6.2003 passed by Additional
Session Judge, District Barabanki (FTC
Court No.29) in Criminal Misc. Case No.
5/2023:State Vs. Ram Sanehi and another
sentencing the appellants under Section 446
Cr.P.C. to pay Rs. 15,000/- each with
default stipulation by means of which the
surety bonds of the appellants have been
forfeited.

3. Learned counsel for the appellants
submits that in complaince the order dated
21.08.2023, the appellants have already
filed the Supplementary affidavit dated
05.01.2024, which is available on record.

4. Learned counsel for appellants has
submitted that the appellants were sureties
of Rs. 15000/- each in S.T. No. 200/1994,
under Section 394/412 I.P.C. of accused
Dinesh Yadav but he jumped the bail.

5. Learned counsel for appellants has
further submitted that when accused Dinesh
Yadav did not appear before the court,
notice was issued to appellants (sureties)
Ram Sanehi and Parsu Ram under Section
446 Cr.P.C., thereafter the court below vide
order dated 05.06.2003 forfeited the
sureties of Rs.15,000/- and issued recovery
warrant and in default of payment, the trial
court
also
imposed
six
months
imprisonment.

6. Learned counsel for appellants has
further submitted that the appellants
preferred the instant criminal appeal before
this Hon'ble Court and this Hon'ble Court
vide order dated 23.01.2004 while staying
the operation of the impugned order dated
05.06.2003 directed the appellants to
deposit Rs. 4000/- towards the bond
amount in the court concerned, within
fifteen days from the date of order.

7. Learned counsel for appellants has
further submitted that in compliance of the
order dated 23.01.2004 the appellants have
deposited the amount.

8. Learned counsel for appellants has
further submitted that the accused Dinesh
Yadav has already surrendered before the
court concerned on 05.11.2003 in another
case S.T. No. 356/2002: State of U.P. Vs.
Dinesh Yadav, arising out of Crime No.
244/1997,under Section 395/412 I.P.C.
pending in the Court of ADJ (Fast Track
Court) Court No.32 and since then he is in
jail.

9. Learned counsel for the appellants
has further submitted that the appellants are
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
3 All. Ram Sanehi & Anr. Vs. State of U.P.
1287
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."

10. Learned A.G.A. for the State
submits that as it was the duty of the
sureties 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 order, thus the learned
court below had rightly passed the
impugned order dated 05.06.2003, but did
not dispute this fact that appellants were
surety of accused Dinesh Yadav in S.T. No.
200/1994, under Section 394/412 I.P.C. of
accused Dinesh Yadav and accused Dinesh
Yadav appeared and surrendered before the
court concerned on 05.11.2003 in another
case S.T. No. 356/2002: State of U.P. Vs.
Dinesh Yadav, arising out of Crime No.
244/1997,under Section 395/412 I.P.C.
pending in the Court of ADJ (Fast Track
Court) Court No.32 and since then he is in
jail. He further submits that under Section
446 Cr.P.C. the Court has discretion to
remit a portion of penalty imposed upon the
appellants.

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 surrendered before the court
concerned, in my view, interest of justice
would be sub-served if the penalty amount
imposed upon the appellants is reduced to
the tune of Rs. 4,000/-, in light of the order
dated 23.01.2004 of this Court in place of
surety amount of Rs. 15,000/- and appeal
may be allowed in part.

12. Accordingly, the appeal is partly
allowed. The penalty amount imposed by
the court below is reduced to the tune of
Rs. 4000/-. If the penalty amount has not
already been deposited, the same be
deposited within one month from today
positively. On account of failure, the
penalty amount fixed in this appeal be
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
realized by the court below in accordance
with law.

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. Record of trial court, if any, shall
also be sent back to the district court
concerned.
----------
(2024) 3 ILRA 1288
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 414 of 2000

Mohd. Nabi @ Munna ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Murli Manohar Srivastava ,Nadeem Murtaza,
Praveen Kumar Yadav, Qazi Sabihur Rahman,
Rajesh Mishra

Counsel for the Respondent:
Govt Advocate

(A)
Criminal
Law
-
Appeal
against
Conviction - Indian Penal Code, 1860 -
Section 436 - Mischief by fire or explosive
substance with intent to destroy house -
Burden
of
proof
-
Presumption
of
innocence - Evaluation of evidence -
Witnesses - three distinct categories -
wholly reliable, wholly unreliable, neither
wholly reliable nor wholly unreliable -
Hostile witness ordinarily falls in category
of those witnesses who are neither wholly
reliable nor wholly un-reliable - Same
treatment required to be given to the
defence witness(es) as is to be given to
the prosecution witness(es) - Court is
concerned with the quality and not with
the quantity of the evidence necessary for
proving or disproving a fact - Accused
must be and not merely may be guilty
before a court can convict and a mental
distinction between 'may be' and 'must be'
is long and divided vague conjectures
from sure conclusions. (Para - 19 ,33,34 ,
36)

(B) Evidence Law - Evidence Act 1872 -
Section 154(1) , (2) - Question by party to
his own witness - statement of witness is
to be read as a whole and conclusion
should not be drawn only by picking up a
single sentence of the statement of a
witness - held - Trial court had overlooked
the material evidence available on record with
regard to guilt of accused and to that extent
conclusion drawn by the trial Court suffers with
patent infirmity and perversity and, therefore,
liable to be reversed and set aside.(Para -41)

(C) Practice & Procedure - Judges must
proactively
interrogate
witnesses
to
distinguish truth from falsehood rather
than leaving it entirely to the advocates -
Trial Court must shed their inertia and
must intervene in all those cases where
intervention is necessary for the ends of
justice. (Para -37)

(D) Words or Phrases - Presumption of
Innocence - "ei incumbit probatio qui
dicit, non qui negat" (the burden of proof
is on one who declares, not to one who
denies): an accused is considered innocent
until proven guilty - It is the duty of the
prosecution to prove the guilt of the
accused. Hostile Witness: witness who
contradicts their earlier statements or acts
unfavorably towards the party that called
them. Falsus in Uno, Falsus in Omnibus
(false in one thing, false in everything): A
principle not applied in Indian law,
emphasizing the need to separate reliable
testimony from falsehoods - duty of Court
to separate grain from chaff. (Paras 17,
19,
24,
27)