IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1434 of 2001 (Old No.430 of 1996) Attar Singh … Appellant Versus The State Dated: April 15, 2010 … Respondents Sri Lalit Sharma, learned amicus curiae for the appellant Sri Amit Bhatt, learned Addl. GA for the State HON. DHARAM VEER, J. The present appeal, preferred u/s 449 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the order dated 12.1.1996 passed by the Sessions Judge, Haridwar in Misc. Case No.3 of 1996, State Vs. Atar Singh. 2. In compliance of the order dated 30.7.2009 and the subsequent orders passed thereon by this Court directing for requisition of the record, the District Judge, Haridwar, vide his letter dated 7.8.2009, informed that the record of the case was sent to the Saharanpur Judgeship. Thereafter, various orders have been passed by this Court for summoning the record and vide letter dated 29.1.2010, District Judge, Saharanpur has reported that the record of the case was not found in the record room for the reason that the record of this case was not received by that court. From a perusal of the above-said communications, it transpires that neither the record room of Haridwar Judgeship nor the record room of Saharanpur Judgeship is having the record of this case. As such, in these circumstances, the record of the case is not traceable. 3. Sri Lalit Sharma, learned amicus curiae for the appellant and Sri Amit Bhatt, learned Addl. GA for the State, both have submitted that after passing of the order dated 12.1.1996 which is under challenge in this appeal, now a period of about fourteen years has elapsed. They further submitted that now the reconstruction of the record or retrial is also not possible. In a judgment rendered by Allahabad High Court in the case of Aziz Khan Vs. State of U.P. reported in ACC 1992 (29) 223, it was held as under: - “Where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence. The occurrence had taken place on 15.10.1976 i.e. 15 years back and the complete record has not been reconstructed; Applying the principle laid down in the above mentioned authorities, we are of the opinion that the appeal of Aziz Khan should be allowed and his conviction and sentence should be set aside and the government appeal against acquittal of accused- respondents is liable to be dismissed.” 4. Apart from above, on a careful perusal of the order dated 12.1.1996 passed by the court below, it reveals that the court below, vide impugned order, directed to issue warrant for attachment against the appellant-Attar Singh. However, it does not transpire that before passing the order in appeal, whether any notice was issued against the appellant-Attar Singh to call upon him to pay the penalty of bond bound by him or to show cause why the amount of penalty should not be paid. Rather, it reveals that straight way the impugned order has been passed directing for attachment against the appellant, which is nothing but in gross violation of provisions of Section 446 of Cr.P.C., which provides for the procedure when bond has been forfeited. Therefore, the impugned order dated 12.1.1996 cannot stand in the eyes of law and is liable to be set aside. 5. In view of the above said dictum of Allahabad High Court as well as in view of the non-compliance of procedure u/s 446 Cr.P.C. by the court below, I am of the view that the appeal deserves to be allowed. Consequently, the appeal is allowed. The order dated 12.1.1996 passed by the Sessions Judge, Haridwar in Misc. Case No.3/1996, State Vs. Attar Singh, is hereby set aside. (Dharam Veer, J.) April 15, 2010 Rajeev Dang