Court No. - 50
Case :- CRIMINAL APPEAL No. - 5504 of 2018 Appellant :- Ompal Respondent :- State Of U.P.
Counsel for Appellant :- Ashvni Mishra Counsel for Respondent :- G.A.
Hon'ble Harsh Kumar,J.
Admit.
Lower court record need not be summoned.
The present appeal has been filed against the order dated 17.4.2018 passed by Additional District and Sessions Judge, Court No.11, Aligarh in Case No.03 of 2009 (State Vs. Gangola and others) as well as order dated 23.5.2018 passed by Additional District and Sessions Judge, Court No.11, Aligarh, under section 446 Cr.P.C. P.S. Akbrabad, District Aligarh, whereby the court below has rejected the application of appellant for exempting of surety money.
Heard learned counsel for the appellant, learned AGA for the State and perused the record.
Learned counsel for the appellant contends that appellant stood as surety for accused Babloo along with Bhadai, who had assured him that he will make the accused appear as and when required; that after submission of surety bonds by appellant for accused Babloo in the year 2003, the accused is alleged to have left to District Bulandshahar without notice of appellant after disposing of his property at Aligarh and has died on 2.11.2012; that the proceedings under section 446 Cr.P.C. initiated against the appellant, the surety, ought to have been dropped upon death of accused, but the learned trial court acted wrongly and illegally in not dropping the proceedings and directing the appellant to deposit the surety money in view of the fact that when the proceedings were initiated, the accused was alive and absconding; that the impugned order is liable to be set aside.
Learned AGA supported the impugned order and contended that the proceedings under section 446 Cr.P.C. were initiated against appellant on 16.6.2009 when the accused was undisputedly alive and absconding and so there can be no justification for exonerating the appellant from the liability of surety and the appellant is bound to deposit the amount mentioned in surety bond.
Upon hearing parties counsel and perusal of record, I find that undisputedly upon death of accused, the proceedings of sessions trial/trial in respect of him gets abated. In this case also upon death of accused Babloo, S.T. No.1046 of 2003 in respect of him would have abated. Upon death of accused, the proceedings under section 446 Cr.P.C. against any of his surety also are required to be dropped and there can be no justification for proceedings against him after death of accused for realization of surety amount on the ground that the accused was absconding during his life time. The fact of death of accused Babloo is not disputed and so the proceedings against the surety are also liable to be dropped and the impugned orders passed by learned trial court dated 17.4.2018 and 23.5.2018 in refusing to drop the proceedings are absolutely wrong, illegal and perverse also. I am of the considered view that learned trial court has acted wrongly and illegally in rejecting the application of appellant and in refusing to recall the recovery warrant and dropping the proceedings. The impugned orders are liable to be set aside and appeal is liable to be allowed.
The appeal is allowed and the impugned orders dated 17.4.2018 and 23.5.2018 are set aside. The proceedings of recovery under section 446 Cr.P.C. against appellant in Miscellaneous Case No.03 of 2009 stands dropped.
Order Date :- 25.9.2018 Tamang