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Court No. 45
Criminal Appeal No. 2824 of 1978
Ram Prasad & another ................Appellants
Versus
State of U.P. .............Respondent
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Hon’ble S.C. Agarwal, J
This is an appeal under Section 449 Cr.P.C. against order dated
11.9.1978 passed by the 4th Addl. Sessions Judge, Agra in Criminal
Case No. 3 of 1977 arising out of S.T. No. 153A of 1976, State Vs.
Raja Ram whereby a penalty of Rs. 2000/- each was imposed on
sureties Ram Prasad and Mangal Sen- appellants under Section 446
Cr.P.C.
I have heard Sri P.N. Mishra, learned Senior Advocate assited
by Sri Apul Mishra, learned counsel for the appellants, learned AGA for
the State and have gone through the impugned judgment.
Trial court’s record is not available. Appeal was filed on
5.10.1978 and admitted on 6.10.1978. For the first time the case was
listed on 29.7.2008 with the office report dated 12.8.2005 that trial
court’s record was summoned but the same was not traceable and
appears to have been lost. It also transpires from the letter dated 6th
May, 2005 of the District Judge, Agra that orders for reconstruction of
the record have been passed.
A non Judicial Enquiry No. 22 of 2005 was also instituted and Sri
P.N Sachan Addl. District Judge, Court No. 8, Agra was appointed as
Enquiry Officer by the District Judge. Report of Sri Mohd. Aqbal Addl.
District Judge, Court No. 4, Agra- subsequent Enquiry Officer dated
12.11.2008 addressed to the District Judge is on record. This indicates
that both the appellants-sureties Ram Prasad and Mangal Sen have
died. Their legal heirs do not possess any papers relating to the file.
Original sureties bonds are present in the file of the Sessions Trial.
Order-sheet of the Criminal Misc. Case No. 3 of 1977 has been
reconstructed. Photo-stat copies of the surety bonds are also available.
Copy of notice issued to appellant no. 2 Mangal Sen has already been
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reconstructed but the reply filed by the sureties and the evidence
adduced by them before the trial court could not be reconstructed.
Learned counsel for the appellant and learned AGA for the State
submitted that the appeal be decided on the basis of material on
record.
Learned counsel for the appellant submitted that both the
appellants have died. The appellants could not have produced the
accused Raja Ram in Court as he was reported to be dead. Ultimately,
the trial court declared the accused Raja Ram absconder as is evident
from the order dated 11.2.1978 passed in Criminal Misc. Case No. 3 of
1977. It was further submitted that in the absence of complete record
and the copies of the evidence produced by the appellants before the
trial court, the appeal cannot be properly adjudicated. It was further
submitted that no useful purpose would be served by order of remand
and reconstruction by the trial court as both the sureties have already
died. In these circumstances, the amount of penalty be remitted as the
same has become irrecoverable.
In the absence of complete record i.e. reply of the appellants to
the show-cause notice under Section 446 Cr.P.C. and evidence
adduced by them before the trial court, correctness of the impugned
judgment cannot be ascertained. Remand or retrial of the sureties is
not possible as both the appellants have died. In these circumstances,
I have no option but to allow the appeal and set aside the impugned
judgmdent.
Criminal Appeal is allowed. The impugned judgment and order
dated 11.9.1978 passed by the 4th Addl. Sessions Judge, Agra in
Criminal Misc. Case No. 3 of 1977 arising out of S.T. No. 153A of 1976
is set aside and penalty imposed on appellants- sureties Ram Prasad
and Mangal Sen is remitted.
Let a copy of this judgement be sent to the Sessions Judge,
Agra within a week for making necessary entries in the fine register.
6.7.2010
KU/-