IN THE HIGH COURT OF JUDICATURE AT PATNA

CR. WJC No.931 of 2011

Saroj Devi & Ors.

Versus

The State Of Bihar & Ors

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3/

25/10/2011

Petitioners, Saroj Devi and Deepak Kumar Gupta who along

with others figured as an accused of Sessions Trial No. 210 of 2010

pending before Additional District and Sessions Judge, FTC-III,

Saharsa, challenged the order dated 28.4.2011 whereby and whereunder

after rejecting their representation petition purported to be under Section

317 of the Cr.P.C faced with consequential effect by having cancellation

of bail bond and issuance of warrant of arrest non bailable.

Heard learned counsel for the petitioner as well as learned

AC to SC-10.

Petitioners are spouse. The above referred Sessions Trial

was lingering for statement of accused to be recorded in accordance

with Section 313 of the Cr.P.C. Absence of petitioner, Saroj Devi, as

pleaded was on account of begetting a male child by way of caesarean

while petitioner no.2 was looking after her. The previous order-sheet

dated 16.04.2011 and 23.04.2011 suggest that inspite of having presence

of other three accused, learned lower court was not at all desirous to

record their statement on the other hand, insisted for presence of 4^th

accused, who was under process of recovery. Therefore, learned lower

court by its own conduct has prolonged the trial. Apart from this, when

a representation petition is rejected, an opportunity is bound to be given

to the accused for having his physical presence on next date as, his

absence on the specified date was acknowledged by the court itself by

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entertaining a petition under Section 317 of the Cr.P.C. and so its

rejection certainly will prejudice the accused, in case, on the same date

warrant of arrest non bailable is directed to be issued after cancellation

of his bail bond.

The aforesaid theme has been considered by this Court at an

earlier occasion and that is 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 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

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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 t