Honble 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. I have heard the learned counsel for the appellant and the learned AGA for the State and perused the material on record.

4. It has been contended on behalf of the appellant that after the case of accused Ram Gopal was separated from S. T. No. 324/84, the case of the remaining accused was tried and they were acquitted

and accused Ram Gopal also treated him as acquitted and had gone to other district in search of employment and, could not appear before the court, but when the notice was issued to the appellant he made efforts to search him out and as a consequence of his efforts, accused Ram Gopal appeared before the trial court and was accordingly tried and he too was acquitted by the trial court. In support of these contentions the learned counsel has drawn the attention of this Court towards the certified copies of the order sheet from 19. 01. 2002 to 02. 02. 2002 and the judgment dated 14. 02. 2002 of S. T. No. 324- A/84, State vs. Ram Gopal and the application dated 02. 02. 2002. It has been contended that the lower court without making any order on his application, disposed of the Sessions Trial on 14. 02. 2002. It has also been contended that surety bond of the appellant had never been forfeited and as such the impugned order for issuance of realization warrant of the surety amount is illegal. Section 446 Cr. P. C. makes it mandatory for the court to record the satisfaction that the surety bond has been forfeited and after recording the grounds of such satisfaction may make an order for the payment of the penalty. There is nothing on record which could show that the court below had passed any order for the forfeiture of the surety bond of the appellant or had recorded the grounds of its satisfaction before making the impugned order for the issuance of the realization warrant of the penalty amount.

5. In view of the above circumstances, including the circumstance that accused Ram Gopal had also been tried for

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