IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.32198 of 2011 Kusum Lal Yadav & Anr. Versus The State Of Bihar & Anr. ---------------------------------- For petitioners:- Mr. Manoj Kumar Jha, Adv. ------- 2 20th October 2011 Heard learned counsel for the petitioner as well as learned APP for the State. 2. Petitioners have challenged order dated 12.08.2011 passed by Additional District and Sessions Judge, FTC-1, Supaul in Sessions Trial No.15/08/158/08(State of Bihar v. Lallal Yadav & Others) whereby and whereunder representation petition purported to be under Section 317 of the Cr.P.C. filed on their behalf has been rejected with a direction to issue warrant of arrest non bailable. 3. The facts of the case whatever have been gathered from the rival submission is that on the relevant date i.e., 12.08.2011 out of six accused persons four were present while the petitioners were represented under Section 317 of the Cr.P.C.. There was attendance of one witness who could not be examined on account of non presence of learned defence counsel and on account thereof, the present scenario visualizes. 4. Contention on behalf of the petitioners is that the order passed by the learned lower court 2 happens to be illegal because of the fact that when representation petition was rejected, then in that event adjournment should have been given to enable the petitioner to have his physical presence and that happens to be spirit of law as decided by this Hon’ble Court reported in 2009(2) PLJR 260 followed by 2011 (3) PLJR 286, the order dated 19th August 2011 passed in Cr. Misc. No. 26099 of 2011. 5. On the other hand, learned APP while opposing submitted that on account of fault on the part of the petitioner, prosecution witnesses could not be examined. Further submitted that presence of prosecution witness more particularly, in State case happens to be an act of libation which has been frustrated by the act of petitioners themselves. 6. So far factual aspect is concerned, there was an opportunity before the learned lower court to examine the witness and discharge him in case, there was non co-operation on the part of the accused persons which, learned lower court did not chose and on the contrary, proceeded to issue warrant of arrest non bailable. It has been settled at rest that whenever a representation petition is rejected, an opportunity should be given to the accused to have his physical presence because of the fact that his non presence 3 was placed before the court concerned with an excuse which happens to be recognizable under the law as provided under Section-317 of the Cr.P.C. When such privilege is denied, then it was incumbent upon learned lower court to give an opportunity to the accused to have his physical presence on the next date instead of issuance of warrant of arrest non bailable because it was not the willful act of the accused rather it was willful act of the learned counsel engaged on his behalf for which he cannot be penalized. 7. In the aforesaid background, the order dated 12.08.2011 passed by learned lower court is set aside subject to the condition that petitioner will deposit Rs.1000/(one thousand)- as witness cost. 8. Consequent thereupon the petition is allowed. 9. Let this order be faxed to the court concerned at the cost of the petitioners. perwez ( Aditya Kumar Trivedi, J.)