RAM SWAROOP Vs. STATE OF U P

JUDGEMENT

(1.) HON'ble S. N. H. Zaidi, J.: - This is a criminal appeal under section 449 of the Criminal Procedure Code, in short the 'Cr.P.C.' against the order dated 07.09.2002 passed by 3rd Additional Sessions Judge, Banda in Criminal Misc. Case No. 07/2001(old no. 22/86), State vs. Ram Swaroop and others, under section 446 Cr.P.C. arising out S.T No. 324-A of 1984, State vs. Ram Gopal and others, under sections 399 and 402 IPC, P.S. Kamasin, District Banda.

(2.) NECESSARY facts which gave rise to this appeal, in brief, are that the appellant had stood surety for accused Ram Gopal involved in S.T. No. 324/1984 under sections 399 and 402 IPC and 25 Arms Act of P.S. Kamasin, District Banda and executed a surety bond of Rs. 3000/- in favour of the State on 09.06.1976. Since the said accused became absent and did not appear before the trial court, therefore, his case was separated and registered as S.T. No. 324-A/84 from the remaining accused by order dated 25.09.1986 passed by the trial court in the said Sessions Trial and Criminal Misc. Case No. 22/1986 (New No. 7/2001) under section 446 Cr.P.C. was registered and notice was issued to the appellant and other surety. On 19.01.2002 accused Ram Gopal appeared before the court and was taken into custody and sent to jail. He was released on fresh bail on 02.02.2002. The trial of S.T. No. 324-A/84 proceeded against accused Ram Gopal and by order dated 14.02.2002 he was acquitted of all the charges by the court of Special Judge, (Dacoity Affected Area)/IVth Additional Sessions Judge, Banda. The Criminal Misc. Case under section 446 Cr.P.C., however, remain pending against the sureties. On 02.02.2002 the appellant moved an application with the contention that since due to his efforts accused Ram Gopal had appeared before the court, therefore, notice be recalled and he be relieved of the liability. However, on 07.09.2002 realization warrant was ordered to be issued against the applicant without disposing of the application dated 02.02.2002, hence this appeal.

(3.) IN view of the above circumstances, including the circumstance that accused Ram Gopal had also been tried for the offence and had been acquitted, the impugned order cannot be justified and appears to be illegal. Consequently, this appeal is allowed and the impugned order dated 07.09.2002 and the proceedings of Criminal Misc. Case No. 07/2002 are accordingly quashed.