IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.26099 of 2011
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Ram Prasad Thakur & Ors.
…. …. Petitioner/s
Versus
The State Of Bihar & Anr.
…. …. Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Manoj Kumar Jha, Adv &
Mr. Om Prakash Tiwary
For the O.P. : Mr. Ajay Kumar Jha, APP
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2/ 19th August 2011 Hear the parties.
Petitioners being aggrieved and dissatisfied
with an order dated 20.08.2010 passed by SDJM,
Bhagalpur in G.R. No.531/2009 whereby and where-
under after rejecting a petition under Section 317 of the
Cr.P.C. cancelled the bail bond and issued non bailable
warrant of arrest followed with an order dated 24 th June
2011 passed by the Additional Sessions Judge, FTC-V,
Bhagalpur in Cr. Revision No. 359 of 2010 whereby and
where-under the Revision petition has been dismissed.
The instant petition has been filed invoking
inherent jurisdiction vested with this Court under Section
482 of the Cr.P.C. Submission is that on 20.08.2010
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though the case was posted for framing of charge but due
to some exigencies petitioners were represented under
Section 317 of the Cr.P.C which was not moved on
account of slackness of conducting Advocate as well as
having the prayer simultaneously to grant adjournment
on the ground of ailment of conducting Advocate so that
they could file a petition for discharge, the same was
rejected by the order impugned resulting cancellation of
bail bond followed with issuance of non bailable warrant
of arrest.
It has been submitted on behalf of the
petitioner that the composite order rejecting the
representation petition filed under Section 317 Cr.P.C
and cancelling the bail bond is non permissible in light of
the judicial pronouncement by this Court reported in
2009(2) PLJR 260 as well as 2011(3) PLJR 286. So
submitted that the order impugned happens to be bad in
law and is accordingly fit to be set aside.
On the other hand, learned APP opposed the
prayer and submitted that the accused-petitioners
adopted dilly delaying tactics just to linger the
proceeding as on previous date alone they were directed
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to be physically present for framing of charge. That
means to say, they were all aware with the intention of
the Court.
Whether the Court is competent to reject 317
Cr.P.C and simultaneously empowered to cancel bail
bond, for which I would like to refer paragraph-16 of the
decision reported in 2009 (2) PLJR 260;
” Section 317 Cr.P.C. provide for
inquiries and trial being held in the absence of
accused in certain cases. However, if the
Magistrate finds that personal appearance of
the accused is necessary, he would direct that
accused would no longer be represented on the
next date by a pleader under Section 317
Cr.P.C. but would appear in person. If the
accused in spite of such order does not appear
in person, it would be open for the learned
Magistrate to issue warrant of arrest and
proceed in accordance with the procedure
prescribed in Chapter-VI of the Cr.P.C. and
may also cancel bail and bail bond and proceed
in accordance with Chapter-XXXIII of the
Cr.P.C. It does not appear from the order of the
preceding dates i.e. 31.1.2008, 26.3.2008 that
personal attendance of petitioner would no
longer be dispensed with, and he is required to
attend in person. The Magistrate in view of
Section 317(1) Cr.P.C. ought to have given an
opportunity to an accused to appear in person
who was being allowed to be represented
through a pleader. The order of preceding dates
in the case on the contrary shows that
Magistrate in fact accepted the representation
under Section 317 Cr.P.C. The Magistrate has
to follow the procedure prescribed therein, if it
does not dispenses with his personal attendance.
A Magistrate while rejecting a representation
4under Section 317 Cr.P.C cannot at the same
time cancel bail bond and issue non-bailable
warrant of arrest if on preceding dates has not
clearly directed that personal attendance under
Section 317 Cr.P.C. will no longer be dispensed
with. The Court ought to provide a reasonable
opportunity to the accused to appear in person
whose representation was earlier being allowed
under Section 317 Cr.P.C.. In this case it
appears that trial lingered as a co-accused Prem
Prakash was absconding. Learned counsel for
the petitioner has also submitted that there have
been no laches in his part.
From the aforesaid citation it is evident that
the learned lower court was wrong in his action while
rejecting petition under Section 317 of the Cr.P.C.
simultaneously cancelling the bail bond and issuing non
bailable warrant of arrest. The same principle has also
been reiterated subsequently in 2011(3) PLJR 286.
In the aforesaid facts and circumstances, the
order impugned is set aside. Consequent thereupon, the
instant petition is allowed.
(Aditya Kumar Trivedi, J.)
perwez