HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 3975/2022

Kadir Ahmed Son Of Shri Bashir Mohd., Aged About 60 Years,

Resident Of Gopal Colony, Near Mela Ground, Police Station

Kotwali Baran, District Baran (Raj).

----Petitioner

Versus

State Of Rajasthan, Through P.P.

----Respondent

For Petitioner(s)

:

Mr. Anoop Pareek, Adv.

For Respondent(s)

:

Mr. Atul Sharma, PP

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

10/05/2022

Heard the parties.

The petitioner is the sole accused in Sessions Case

No.40/2013 before the learned Special Judge, ACB Cases, Kota.

On 12.04.2022, the petitioner filed an application for

exemption of his personal appearance on that day and for allowing

him to be represented through his counsel under the provisions of

Sections 317 of Cr.P.C. The petitioner stated that he was suffering

with some mental ailment, hence, he could not appear.

By the impugned order dated 12.04.2022, the prayer was

refused on the ground that the petitioner had not produced any

document of mental ailment.

The provisions of Section 317 of Cr.P.C. reads as under:-

“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

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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.”

Learned counsel for the petitioner submits that the Court

below has not recorded anything that the personal attendance of

the petitioner was necessary on that particular day or the fact that

due to physical absence of the petitioner, the proceeding of the

trial could not take any progress. The provisions of Section 317 of

Cr.P.C. is for some purpose and not ‘for fun’. The court is always

expected to have reasons consistent with the requirement of law.

Only for non-production of supporting documents of illness could

not be a ground for rejecting the petition of the petitioner under

Section 317 of Cr.P.C. Moreover, the option open for the trial Judge

while rejecting the petition under Section 317 of Cr.P.C. was to

direct the petitioner for personal appearance on the next date and

not to cancel his bail bond and issue warrant of arrest. The second

part of Section 317 of Cr.P.C. referred above have been relied

upon.

Learned Public Prosecutor has opposed the prayer, however,

does not dispute the requirement of statutory provisions.

In my view, the order of learned Court below suffers from

arbitrariness. The impugned order does not show that the

personal appearance of accused was necessary on that particular

day and Court is not expected to ask the accused only to remain

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present on each and every day, in spite of the fact that prosecutor

is not performing his part.

If the prosecution brings any witness and the trial is

hampered due to latches on the part of the petitioner, the trial

court might have acted accordingly. Moreover, if application under

Section 317 of Cr.P.C. was rejected by the Court below, the option

open before the Court below was to direct the petitioner to remain

present on the next date and not to cancel the bail bond.

Therefore, the impugned order is quashed.

The petitioner is directed to re