Dafedar and Others vs State of U.P.

S.K. Agarwal, J.—Heard the learned Counsel for the Appellant.

These 3 appeals arise from a common order in which the surety''s bonds of Dafedar, Ram Shankar, Sushil Kumar, Mahendra Pal, Satya Deo, Rustam and personal bonds of accused Nek Ram, Surendra and Virendra were forfeited and they were issued notices to show cause why the amount of their bonds be not realised from them.

In this case it has been brought to the notice of this Court that the Appellants were acquitted of the charges under Sections 147, 148, 149, 307/149 and 302/149 by the v. Ist Additional Sessions Judge, Etah, extending the benefit of doubt to all the accused persons who faced trial in Session Trial No. 271 of 1978. The acquittal order is dated 20.11.1978. This clearly means that the passage of the impugned order dated 4.7.1979, is much after the impugned order of acquittal. The accused persons must have appeared and the judgment was also delivered in their favour. Earlier learned IIIrd Addl. Sessions Judge, Etah, had forfeited the surety bonds of the sureties Dafedar, Rama Shankar, Rustam, Satya Deo, Mahendra Pal and Sushil Kumar without issuing any show cause notices to the sureties for the realisation of the bond''s amount. This mistake was corrected by another Addl. Sessions Judge Sri S. A. Abbasi by his order dated 4.7.1979. In my opinion this part of rectifying the mistake committed by IIIrd Addl. Sessions Judge, Etah, by a subsequent order after a lapse of one year is not permissible in law. No such modification in the order once it was passed is permissible in law. The proper course open to the Sessions Judge was that he should have recalled the order of forfeiture of bonds and its realisation of the amount dated 28.6.1978, and thereafter he would have issued a fresh notice to the Respondents to show cause but without recalling or withdrawing that order no such order could have been passed as under challenge.

However, on a subsequent date i.e. 23.5.1980, the Addl. Sessions Judge holding the sureties responsible for non-availability of correct particulars of the sessions trial had directed the recovery to be made from them by stating that the order passed by him on 4.7.1979, be given effect to. Since the trial had come to an end long before the subsequent order is passed showing that the accused persons facing the trial had appeared and were acquitted, this exercise subsequently entertained by the IInd Addl. Sessions Judge is an exercise in futility. The first order suffered from illegality of non-issuance of show cause notices to the sureties and accused persons. The subsequent order also is illegal in as much as without withdrawing that order, it had been amended.

The State had filed an appeal against the acquittal. That appeal too was dismissed by this Court upholding the abovesaid acquittal order. The judgment of the High Court dismissing the appeal is placed on record by learned Counsel for the Appellants.

In the result, these appeals succeed and are allowed. The orders dated 23.5.1980 and 4.7.1979, hereby set aside.