Patna High Court - Orders
Ramdip Singh & Ors. vs The State Of Bihar on 19 August, 2011
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.21950 of 2011
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Ramdip Singh & Ors.
.... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ================= For the petitioners:- Mr. Rakesh Kumar, Adv For Opposite Party:- Mr. Yogendra Kumar Singh, APP
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2/ 19th August 2011 Heard the parties.
2. The instant petition has been filed challenging propriety of the order dated 20.04.2011 passed by Sri Sharad Chandra Kumar, Judicial Magistrate, 1st Class, Begusarai in G.R. No.2371 of 2009 rejecting the petition under Section 317 of the Cr.P.C. as well as cancelling the bail bond and directing to issue non bailable warrant of arrest against the petitioners.
3. From order impugned it is evident that one of the accused was in attendance while remaining were represented under Section 317 of the Cr.P.C. and the case was lodged for furnishing of police papers upon accused as provided under Section 207 of the Cr.P.C. Instead of providing police paper the order 2 impugned as well as its previous order speak that the learned Magistrate was more eager in getting the petition cancelled side by side cancelling the bail bond and issuance of warrant of arrest by a conjoined order which could not have effected in the light of a judicial pronouncement held and reported in 2009 (2) PLJR
260. Relevant paragraph happens to be para-16 which goes like this:
" 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 3 does not dispenses with his personal attendance. A Magistrate while rejecting a representation under 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.
4. The aforesaid view has further been reiterated in the decision reported in 2011 (3) PLJR
286.
5. Consequent thereupon, the order impugned is set aside. The instant petition is allowed.
(Aditya Kumar Trivedi, J.) perwez