J. Ganguly vs The Union Of India Through C.B.I. on 14 July, 2014

[Cites 5, Cited by 0]

Patna High Court - Orders

J. Ganguly vs The Union Of India Through C.B.I. on 14 July, 2014

The present Criminal Revision application is directed against the order dated 7.5.2014 passed by the learned Special Judge, CBI - II, Patna in Special Case No. 28 of 2004 arising out of R C No. 7(s) of 2004 whereby the petitioner's application under section 317 Cr.P.C. was rejected, the petitioner was directed to be physically present, bail bonds were cancelled and warrant of arrest was directed to be issued.

Learned senior counsel for the petitioner has confined his argument to the effect that by the impugned order dated 7.5.2014 the learned Special Judge should not have rejected the petition under section 317 Cr.P.C., directed for the physical presence of the petitioner and cancelled the bail bonds simultaneously as the same is contrary to the provision under Patna High Court CR. REV. No.562 of 2014 (2) dt.14-07-2014 2/7 section 317(2) Cr.P.C. which reads as follows:

"317. 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 of such accused.

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."

Reliance has been placed on the case of Sandeep Kumar Tekriwal Vs. The State of Bihar and Anr. 2009(2) PLJR 260. Paragraph nos. 16,17 and 22 read as follows:

"16. Section 317 Cr.P.C. provide for inquiries and trial being held in the absence of accused in certain Patna High Court CR. REV. No.562 of 2014 (2) dt.14-07-2014 3/7 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 dispense 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 Patna High Court CR. REV. No.562 of 2014 (2) dt.14-07-2014 4/7 Section 317 Cr.P.C. will no longer be dispense 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.

17. In the instant case, the learned Magistrate not only rejected application under section 317 Cr.P.C., but also cancelled the bail bond and issued non-bailable warrant of arrest by a composite order dated 28.6.2008, which is impermissible under Section 317 Cr.P.C. If the Magistrate did not think it appropriate to allow the representation of petitioner under Section 317 Cr.P.C. any more, it could have directed the petitioner to appear in person on dates next. Even then if petitioner or accused does not appear for reasons which do not seem valid to the Magistrate, he may proceed to issue warrants as provided in Chapter- VI of Cr.P.C. and cancel bail and bail bonds as engrafted in Chapter- XXXIII Cr.P.C., as noticed in para 16. The learned Magistrate as such exceeded jurisdiction vested in him and exercised the same erroneously.

22. In view of aforesaid findings, I find that the learned Magistrate exceeded his jurisdiction by Patna High Court CR. REV. No.562 of 2014 (2) dt.14-07-2014 5/7 cancelling bail and bail bond and issuing no bailable warrant of arrest while rejecting the representation under Section 317 Cr.P.C. vide one composite order dated 28.6.2008, without any prior order on preceding dates directing the personal attendance of petitioner, and as a result the same is set aside. The petitioner is directed to appear before the learned Magistrate within six weeks from today who would allow him to remain on previous bond. The petitioner would abide by any further direction of Magistrate in the proceeding."

It is further submitted that on the preceding date, i.e. 19.4.2014, the regular C.B.I. court was not available though the representation under section 317 Cr.P.C. was filed which was allowed by the incharge court.

It is submitted by Mr. Bipin Kumar Sinha, learned counsel for C.B.I. that the petitioner did not appear personally on 1.4.2014 and 19.4.2014, hence, his bail bonds were cancelled in view of the conditions of grant of bail by this court vide Cr. Misc. No. 7194 of 2012 which stipulates that petitioner will be present on the date of charge and if he fails to do so on two given dates and delays the trial in any manner the bail will be liable to be cancelled. Hence, impugned order needs no interference.

Considering the rival submissions of the parties, this court is of the view that the learned Special Judge rejected the Patna High Court CR. REV. No.562 of 2014 (2) dt.14-07-2014 6/7 application under section 317 Cr.P.C. and directed the petitioner to be physically present, cancelled the bail bonds of the petitioner and directed to issue warrant of arrest on the ground that the prayer for discharge was rejected on 1.4.2014 but more than twenty one days have elapsed but no stay order has been produced. Hence, the bail bonds were actually not cancelled for violation of conditions of bail order. More over, the petitioner filed the application under section 317 Cr.P.C. on 1.4.2014 and 19.4.2014 for being represented through his lawyer but on 19.4.2014 the regular C.B.I. court was absent hence it cannot be treated to be default for two consecutive occasions.

Hence the impugned order dated 7.5.2014 passed by the learned Special Judge, C.B.I. - II, Patna whereby the application of the petitioner under section 317 Cr. P.C. was rejected, the petitioner was directed to be physically present, bail bonds were cancelled and warrant of arrest was directed to be issued, is not only contrary to the provision under sub-section (2) of Section 317 of Cr.P.C. but contrary to the ratio laid down in the case of Sandeep Kumar Tekriwal (supra) which prohibits the rejection of application under section 317 Cr.P.C. and cancellation of bail bonds simultaneously as has been done in the instant case.

In view of discussions made above, the order dated Patna High Court CR. REV. No.562 of 2014 (2) dt.14-07-2014 7/7 7.5.2014 passed by the learned Special Judge, CBI - II, Patna in Special Case No. 28 of 2004 arising out of R C No. 7(s) of 2004 is set aside. .

It is expected from the petitioner to appear before the learned court below on the next date fixed.

This application stands allowed.

(Dinesh Kumar Singh, J) Anil/-

Unlock Advanced Research with PRISMAI

Patna High Court - Orders