THE HIGH COURT OF MADHYA PRADESH, INDORE BENCH (Smt. Jyoti and Smt. Mamta vs. State of Madhya Pradesh)

Indore, Dated: 04.02.2022 Shri Dharmendra Gurjar, learned counsel for the applicants.

Shri Sameer Verma, learned Panel Lawyer for the respondent/State.

This is the applicants' first application under Section 438 of Criminal Procedure Code, 1973 (hereinafter referred to the Code) for grant of anticipatory bail, as the present applicants are apprehending their arrest in connection with Crime No.395/2021 registered at Police Station -Azad Nagar, Indore (MP) for offence punishable under Sections 304-B, 498-A and 34 of the IPC. The applicants are apprehending their arrest in the aforesaid case after their application filed u/s.317 of the Code has been dismissed by the Trial court vide order dated 15.12.2021.

The case of the applicants is that earlier, this Court was pleased to allow their bail applications vide M.Cr.C. Nos.30874/2021 and 39167/2021 dated 19.7.2021 and 8.9.2021 respectively. While allowing the aforesaid bail applications, it was also observed that, 'this order shall be effective till the end of the trial, however, in case of bail jump, it shall become ineffective'. Counsel has submitted that after being release on bail, when the matter was fixed before the trial court on 15.12.2021, as the Advocates were on strike, hence an application for personal exemption of the applicants under Section 317 of the Code was filed by one Tina @ Ambika, who was also one of co-accused persons, stating that the applicant No.2 Mamta is to undergo an eye surgery in the Shankar Eye Center, Indore and the applicant No.1 Jyoti,who happens to the mother of applicant No.2 would be attending her. The aforesaid the application has been dismissed by the learned Judge of the trial Court on the ground that the application under Section 137 of the Code has been filed neither by the applicants themselves nor their counsel and in such circumstances, the application cannot be taken on record.

Counsel for the applicant has submitted that as the applicants were not able to come to the court on account of the eye operation of the applicant No.2 and they had no option but to file their application under Section 317 of Code through the other co- accused Tina, which ought to have been allowed, but the learned Judge of the trial court has dismissed the application on technical ground only and now the present applicants are again apprehending their arrest. Counsel has submitted that the documents regarding the eye operation of the applicant No.2 could not be submitted in the trial court as the operation itself was to be performed on 15.12.2021, and hence, the documents regarding the operation of the applicant No.2 are also placed on record before this Court along with the bail application. Thus, it is submitted that the application be allowed.

Counsel for the respondent / State, on the other hand, has opposed the prayer.

Having considered the rival submissions and on perusal of the record, this Court is of the considered opinion that while rejecting the application under Section 317 of the Code the learned Judge of the trial court has clearly erred in law by not appreciating the provision of s.317 of the Code in its proper perspective. S.317 of the Code reads as under:-

“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 represente