IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1640 of 2001 (Old No.384 of 1996) 1. Sukhendra Pal Singh 2. Dheer Singh Both R/o Roorkee, P.S. Gangnagar, Roorkee, Distt. Hardwar …….….…. Appellants Versus The State …….….… Respondent Dated: July 3, 2008 Sri Nagesh Aggarwal, learned amicus curiae for the appellants Sri Harish Pujari, learned Addl. G.A. for the State HON. DHARAM VEER, J. The present appeal preferred by the appellants u/s 449 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the order dated 22.12.1995 passed by Sessions Judge, Hardwar in Misc. Case No.77 of 1995, State Vs. Sukhendra Pal Singh, whereby the learned Sessions Judge has imposed a fine of Rs.6,000/- each to the appellants in lieu of surety. In default of payment of fine, six months simple imprisonment was awarded to each of the appellants. I have heard Sri Nagesh Aggarwal, learned amicus curiae for the appellant and Sri Harish Pujari, learned Addl. G.A. for the State and perused the entire material available in file. In brief the prosecution case is that appellants Sukhendra Singh and Dhir Singh were the sureties of accused Sukhbir Singh. When the accused Sukhbir Singh did not appear in the court on the date fixed, then the court issued non-bailable warrant against him. Since the appellants were the sureties, therefore, the notices were also issued to them stating therein that why the surety amount should not be realized from them. As the notices were served upon the appellants personally and the appellants did not file any reply to the said notice, therefore, the learned court below held that the appellants had nothing to say in this respect. After that the learned Sessions Judge, Hardwar vide his order dated 22.12.1995 imposed fine of Rs.6,000/- against each of the appellants in lieu of amount of surety and also directed to issue recovery warrant against them. In default of payment of fine, six months simple imprisonment was also awarded to each of the appellants. Feeling aggrieved by the said order dated 22.12.1995, the appellants have preferred the present appeal. A counter affidavit of Sri Satish Chandra Mishra, Sub- Inspector, P.S. Gangnahar Roorkee, Distt. Hardwar, has been filed on behalf of State in which it has been stated that in Criminal Appeal No.4 of 1995, Sukhbir Vs. State, the learned Sessions Judge, Hardwar cancelled the bail of the accused Sukhbir and personal bond of appellant and bond of sureties were also forfeited. It has also been stated that in this matter, the court ordered to S.O. Gangnahar Roorkee. The notices were also issued against the appellants why the surety amount should not be realized from them. The notices were served upon them and after considering the matter, the learned Sessions Judge passed the order to realize the amount of Rs.6,000/- from the appellants. The surety amount of Rs.6,000/- was realized from each of the appellants and the same was deposited in the court on 12.3.1996. The receipt of the said amount has also been annexed as Annexure CA1 to the counter affidavit. Sri Nagesh Aggarwal, learned amicus curiae for the appellant as well as Sri Harish Pujari, learned Addl. G.A. for the State, both have submitted that this appeal has been rendered infructuous as by the order dated 22.12.1995, each of the appellants were directed to pay fine of Rs.6,000/- in lieu of surety and the said amount has already been deposited in the court on 12.3.1996 and receipt thereof has also been annexed as CA1 to the counter affidavit. As the fine of Rs.6,000/- each was awarded against each of the appellants by the order dated 22.12.1995 passed by Sessions Judge, Hardwar and their surety bonds were forfeited and the said amount has already been deposited in the court which is also admitted by both the parties, hence in view of the above-statement given by learned counsel for both the parties, the appeal has been rendered infructuous and is dismissed as such. (Dharam Veer, J.) July 3, 2008 Rajeev Dang