Rajpal and anr. Vs. State of U.P. - Court Judgment

Excerpt:

.....challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - 7. it is further provided that if appellants fail to file any such objection during the time allowed by this court, the court shall be at liberty to proceed with the recovery of amount of bail bond from the appellants in accordance with law......passed by the learned additional sessions judge, xiith fast track court no. 3, mathura in misc. case no. 1 of 2008 (state v. rajpal and anr.).2. the facts relevant for disposal of this appeal are that the accused appellants had stood sureties for the accused maluka in st. no. 180 of 2005 (state v. maluka) pending before the above court. the accused maluka had absented and a report was received that he had been absconding. notices were issued to the appellant sureties to produce the accused maluka. these notices were personally served upon the appellants but they did not appear. hence an order was passed on 20-12-07 for forfeiting the amount of bail bond and for issuing notices to the sureties under section 446 cr. p. c to show cause as to why the amount of 50,000/- should not be realised on them. the appellants did not appear in spite of service of this notice also. hence an order was passed on 8-4-2008 for issuing warrant of recovery of the amount of surety bond which was of rs. 50,000/- each against the appellants. thereafter the appellants appeared in the court and moved an application. a copy of this application has been filed as annexure 1 of the affidavit filed in the.....

Judgment:

ORDER

R.K. Rastogi, J.

1. This criminal appeal has been filed against the orders dated 20-12-2007, 8-4-2008 and 8-7-2008 passed by the learned Additional Sessions Judge, XIIth Fast Track Court No. 3, Mathura in Misc. case No. 1 of 2008 (State v. Rajpal and Anr.).

2. The facts relevant for disposal of this appeal are that the accused appellants had stood sureties for the accused Maluka in ST. No. 180 of 2005 (State v. Maluka) pending before the above Court. The accused Maluka had absented and a report was received that he had been absconding. Notices were issued to the appellant sureties to produce the accused Maluka. These notices were personally served upon the appellants but they did not appear. Hence an order was passed on 20-12-07 for forfeiting the amount of bail bond and for issuing notices to the sureties under Section 446 Cr. P. C to show cause as to why the amount of 50,000/- should not be realised on them. The appellants did not appear in spite of service of this notice also. Hence an order was passed on 8-4-2008 for issuing warrant of recovery of the amount of surety bond which was of Rs. 50,000/- each against the appellants. Thereafter the appellants appeared in the Court and moved an application. A copy of this application has been filed as annexure 1 of the affidavit filed in the appeal in which it was stated that they were producing the accused Maluka before the court and he should be taken into custody. On this application, the Court passed an order on 24-6-08 for taking accused into custody and sending him to jail. He further ordered to put up the case on the date fixed for orders. The date 8-7-08 was fixed in the case. On that date an order was passed that the recovery warrant had not been received back after recovery, and so a letter be written to the SSP for recovery of the bail amount from the sureties. Aggrieved with that order the sureties have filed this appeal.

3. Heard learned Counsel for the appellants and learned A.G.A. for the State. As the point involved in this appeal is legal one. I am deciding it on merits with the consent of the parties at the stage of admission.

4. It is to be seen that when the accused had not appeared, the amount of the surety bond was liable to be forfeited from the appellants and the Trial Court did not commit any illegality by passing an order on 20-12-07 for forfeiting the amount of bail bond. He also passed an order for issuing a notice to the sureties under Section 446 Cr. P. C to show cause as to why the amount of bail bond should not be recovered from them This notice was served upon the sureties as is apparent from the order dated 8-4-08 but they did not appear. Hence the court rightty passed an order for issuing recovery warrant to recover the amount of bail bond from the appellants. However, thereafter the appellants appeared before the court and produced the accused Maluka before the court and the accused was taken into custody on 24-6-2008. The Court also passed an order for putting up the case on the next date i.e. 8-7-2008. On that date the sureties did not appear in the Court, and since the recovery warrant had not been received back, the Court passed an order for issuing fresh recovery warrant. It is now to be seen that the appellants had produced the accused Maluka before the Court. Hence they should have filed an objection as provided under para -3 of Section 446 Cr. P.C., but they did not file any such objection.

5. However, since the appellants have produced the accused Maluka as is apparent from the order sheet of the Sessions Trial dated 24-6-2008, the matter of recovery of the amount of the bail bond requires reconsideration and the appeal deserves to be allowed to this extent only that the order passed by the Trial Court for issuing the recovery warrant against the appellant is set aside.

6. The appellants shall appear within a month from today before the court concerned and file their objection against the recovery proceedings as provided in para -3 of Section 446(1) of Cr. P. C. and after providing reasonable opportunity of hearing to the parties the court shall pass suitable orders on that objection on merits.

7. It is further provided that if appellants fail to file any such objection during the time allowed by this Court, the court shall be at liberty to proceed with the recovery of amount of bail bond from the appellants in accordance with law.

The appeal is allowed to this extent.