Jharkhand High Court
Karan Singh Alias Tinku vs The State Of Jharkhand on 3 July, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1340 of 2017
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Karan Singh @ Tinku, son of Late Vijay Kumar Singh, resident of
Shadpura, Ghatsila, P.O. and P.S. Ghatsila, District - East Singhbhum
... ... Petitioner
Versus
The State of Jharkhand ... ... Opp. Party
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Indrajit Sinha, Advocate
For the Opp. Party : Mr. Sanjay Kumar Srivastava, A.P.P.
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02/03.07.2017Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioner and Mr. Sanjay Kumar Srivastava, learned A.P.P., for the State.
In this application the petitioner has prayed for quashing of the order dated 21.03.2016 passed by the learned Judicial Magistrate, 1st Class, Ghatsilas whereby and whereunder the representation petition preferred by the petitioner under Section 317 of the Cr.P.C. has been rejected and bail bond has been cancelled and non-bailable warrant of arrest has also been directed to be issued against the petitioner. The petitioner has further prayed for quashing of the order dated 16.11.2016 by which proclamation under Section 82 Cr.P.C. has been ordered to be issued against the petitioner in connection with Dhalbhumgarh P. S. Case No. 40 of 2012.
It has been stated by the learned counsel for the petitioner that the petitioner has preferred an application for discharge which on being rejected led the petitioner to file revision application and considering the said fact the representation petition under Section 317 Cr.P.C. was allowed from time to time. It has been stated that on 02.03.2016 the representation petition under Section 317 Cr.P.C. of the petitioner was also allowed. Learned counsel submits that however on 21.03.2016 without there being any direction to the petitioner to physically appear while refusing to entertain the application under Section 317 Cr.P.C. the bail bond of the petitioner was cancelled and non-bailable warrant of arrest was issued which subsequently led to issuance of proclamation under Section 82 Cr.P.C. without there being any execution report of the non-bailable warrant of arrest. Learned -2- counsel submits that in terms of Section 317 Cr.P.C. the learned trial court was precluded from rejecting the application under Section 317 Cr.P.C. and at the same time cancel the bail bond as well as issue non-bailable warrant of arrest against the petitioner for which he has referred to the case of Sandeep Kumar Tekriwal Vs. State of Bihar and Ors. reported in 2009 (1) East Cr. Cs. 233S (Patna).
Learned A.P.P. has opposed the prayer made by the petitioner. It appears that the petitioner is an accused in a case under Sections 384, 387 and 504 of the Indian Penal Code. The petitioner had preferred an application for discharge which however was rejected on 06.06.2015 with a direction to the petitioner to remain personally present on the next date. However, the petitioner preferred a representation and the same having been brought to the notice of the learned trial court the application filed by the petitioner was allowed. The revision application however was dismissed and even after receiving the lower court record the representation petition was filed by the petitioner was allowed continuously till 02.03.2016 when the Presiding Officer himself was on leave. However, it appears that on 23.03.2016 the application preferred by the petitioner under Section 317 Cr.P.C. was rejected on the ground that the record was fixed for charge since 06.06.2015 but the petitioner had not appeared before the court below. The background leading to passing of the impugned order dated 21.03.2016 has not been properly appreciated by the learned trial court as no further opportunity was given to the petitioner to make himself physically present after rejecting the representation petition under Section 317 Cr.P.C. The learned trial court has straightway after refusing to entertain such application has cancelled the bail bond of the petitioner and had also directed to issue non-bailable warrant of arrest against the petitioner.
In the case of Sandeep Kumar Tekriwal Vs. State of Bihar and Ors. (Supra) while considering the ambit and purport of Section 317 Cr.P.C. it was held as follows:-
"A Magistrate while rejecting a representation under Section 317 CrPC cannot at the same time cancel bail bond and issue non -3- bailable warrant of arrest, if on preceding dates has not clearly directed that personal attendance under Section 317, CrPC 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 PC."
As would be apparent that on the preceding date on 02.03.2016 the Presiding Officer was himself on leave and the application preferred by the petitioner under Section 317 Cr.P.C. was allowed.
The circumstance enumerated above does not indicate that the learned Magistrate could not have passed the subsequent order by which bail bond of the petitioner was cancelled and non-bailable warrant of arrest was issued against him as the petitioner was never directed while cancelling the representation application under Section 317 Cr.P.C. to physically appear in person on the next date and if he had not appeared, the learned trial court could have taken further steps for securing his attendance.
In view of the aforesaid fact while setting aside the impugned order dated 21.03.2016 as well as the order dated 16.11.2016 the petitioner is directed to remain physically present before the learned court below on the next date of hearing or within a period of two weeks whichever is earlier and the learned trial court is also directed to expedite the trial.
This application stands disposed of.
(Rongon Mukhopadhyay, J.) Umesh/-