Jharkhand High Court
Santosh Singh Alias Santok Singh vs The State Of Jharkhand on 2 November, 2012
Author: D.N.Upadhyay
Bench: D.N.Upadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.)No. 286 of 2012
Santosh Singh @ Santok Singh. ... ... ...Petitioner
-Versus-
1. The State of Jharkhand.
2. Prabhas Chandra Mandal. ... ... ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE D.N.UPADHYAY
For the Petitioner: Mr. Vineet Kumar Vashistha, Advocate.
For the Respondents: Mr. Jalisur Rahman, J.C. to G.P.-III.
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02/ 02.11.2012This writ petition has been filed for quashing of the order dated 26.04.2012 passed by Shri S.K.Verma, Judicial Magistrate, 1st Class, Dhanbad in connection with C.P. Case No. 2148 of 2010 whereby the representation petition filed by the petitioner was cancelled and warrant of arrest against him has been issued.
It is submitted that the petitioner was on bail and after substance of accusation was explained, the case was pending for evidence. On 31.1.2012 one of the witnesses Akshaybar Pathak was present. He was examined and partly cross-examined on behalf of petitioner and thereafter a request was made to adjourn the case for further cross-examination. Accordingly, next date was given on 17.03.2012 but on that date P.O. was on special leave and therefore, matter was not taken up. On 27.03.2012 no witness was present and the case was again adjourned for 26.4.2012 on which date the witness Akshaybar Pathak, who was partly cross-examined and another witness Prabhash Chandra Mandal were present. The petitioner was represented through his lawyer but on call nobody turned up, as a result, the witnesses could not be examined and cross-examined. On that very date, the petition filed under Section 317 Cr.P.C. on behalf of the petitioner was dismissed and warrant of arrest non-bailable has been issued.
It is submitted that on 17.3.2012 or on 27.3.2012 no direction was given to the petitioner to remain physically present and therefore, petition filed under Section 317 Cr.P.C. ought to have been allowed. In this regard, the petitioner has relied upon the judgment reported in 2009 Cri. L. J. 523 (Patna High Court) 'Sandeep Kumar Tekriwal Vs. State of Bihar & Anr.' It is submitted that before rejecting the petition filed under Section 317 Cr.P.C., the learned Magistrates should have given direction to the accused to appear in person and he was not given opportunity, which caused prejudice to him.
It is contended that the impugned order was arbitrarily passed without considering the provision as contained in Section 317 Cr.P.C. and therefore, it is liable to be quashed.
Learned Counsel for the State has opposed the prayer and submitted that Section 317 is an exception under which trial or enquiry can proceed in absence of the accused if the court is satisfied with the reasons assigned in the petition. Here in the instant case, the witnesses were present, representation petition under Section 317 Cr.P.C. was filed but the Counsel for the petitioner did not appear either to co-operate with the trial or even to move the petition filed under Section 317 Cr.P.C. and therefore, 2. the Magistrate has left no option but to cancel the bail, which he did and the order is just and needs no interference.
In this context, I have gone through the judgment cited by the learned Counsel appearing for the petitioner and also considered the provisions appearing under Sections 317, 441 Cr.P.C. and form No. 45. Before discussing the conduct of the petitioner, I would like to refer Section 441 of the Cr.P.C. which reads as under:
" Bond of accused and sureties.-(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be."
From the plain reading of the Section, it is clear that person released on bail shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the police officer or the Court as the case may be. When a person released on bail, he will have to furnish bail bond according to Form 45 appended with the Cr.P.C. which is quoted hereunder:-
FORM No.45 BOND AND BAIL-BOND FOR ATTENDANCE BEFORE OFFICER IN CHARGE OF POLICE STATION OR COURT I,..............(name), of..............(place), having been arrested or detained without warrant by the officer in charge of..................police station ( or having been brought before the Court of..............), charged with the offence of................, and required to give security for my attendance before such Officer or Court on condition that I shall attend such Officer or Court on every day on which any investigation or trial is held with regard to such charge, and in case of my making default herein, I bind myself to forfeit to Government the sum of rupees................
Dated, this................day of.............., 20...........
(Signature) Thus, it is clear that the petitioner, who is a person accused in a case if released on bail is under obligation to attend the Court on every date unless any specific direction is given to him. Now coming to Section 317 Cr.P.C. which reads as follows:-
"Provision for inquiries and trial being held in the absence of accused in certain cases.-(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance or such accused."
It is apparent from the plain reading of Section 317 Cr.P.C. that if the Magistrate is satisfied for reasons to be recorded that personal attendance of the accused before the Court is not necessary in the interest of justice, or that the accused persistently disturbs the proceeding in the Court, the Judge or Magistrate may, if the 3. accused is represented by a pleader, dispense with his attendance and proceed with such enquiry or trial in his absence. Thus, it is clear that this liberty is given to the Court that it can proceed in absence of the accused with the enquiry or trial if the Court is satisfied for the reasons assigned in the petition filed under Section 317 Cr.P.C.
Now coming to the conduct of the petitioner, which is apparent from the copy of the order-sheet annexed with this writ petition. On 31.1.2012 a witness was present and he was partly cross-examined and the matter was adjourned on the request of petitioner. Thereafter, the petitioner was always represented through his lawyer i.e. on 17.3.2012, 27.3.2012 and 26.4.2012. On the preceding two dates of the impugned order the petition filed under Section 317 Cr.P.C. which were allowed but the on the next date i.e on 26.4.2012 when the witnesses were present neither the petitioner was present nor his Counsel appeared either to cross-examine the witness or even to move the petition filed under Section 317 Cr.P.C. by him. Therefore, the Magistrate has left no option but to reject the petition and cancel the bail of the petitioner. The satisfaction which requires under Section 317 Cr.P.C. to allow a petition is completely absent and therefore, plea taken by the petitioner is not tenable. All these aspects were not discussed in the said judgment and therefore, I differ with the view and I do not find merit in this petition and the same stands dismissed.
The petitioner is directed to appear before the court-below within six weeks from today and on his appearance the court-below shall pass appropriate order and proceed with the trial.
[D.N.Upadhyay,J.] P.K.S.