IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28163 of 2011 Anand Gupta @ Anand Kumar Gupta, son of Bharat Prasad @ Bharat Prasad Gupta, resident of Ist Floor, Surjeet Villa Apartment, Exhibition Road, Police Station Gandhi Maidan, District-Patna. …..Petitioner. Versus The State of Bihar ----------- 2 24.08. 2011 Sole accused / petitioner has prayed for setting aside the order dated 17.08.2009 passed by Sri R.K. Tripathi, Judicial Magistrate, Ist Class, Patna in Complaint Case No.2426(C) of 2005 along with order dated 24.06.2011 passed by Additional Sessions Judge-II, Patna in Cr. Revision No.877 of 2009 by which the revision filed on behalf of petitioner has been dismissed, confirming the order of the learned magistrate by which bail bond of the petitioner was cancelled and warrant of arrest non-bailable was issued. Shorn of unnecessary details, as per order sheet it is evident that the case was put for framing of charge and the impugned order dated 07.08.2009 discloses absence of petitioner that led cancellation of bail bond and issuance of warrant of arrest non-bailable. From Annexure-2 it is evident that a petition under Section 317 of the Cr.P.C. was already there on behalf of petitioner but the order impugned finds no reference thereof. The previous order sheet dated 20.04.2009 gives an impression regarding physical presence of petitioner on which date no charge was framed. Therefore, the averments made in the order dated 17.8.2009 appears to be inconsistent with the factual aspect. Be that as it may, the matter in hand had already been adjudicated upon by this Court as has been held and reported in 2009 (2) 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 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 that there have been no laches in his part. Therefore, so far rejection of Section 317 of the Cr.P.C. is concerned, that happens to be within the exclusive domain of Magistrate 3 having with a condition that accused then thereafter will be given an opportunity for his physical presence and in case there has been disobedience, then and then only bail bond of the accused is liable to be cancelled. That means to say conjoint order is forbidden. Now coming to the order impugned, it appears that it happens to be totally inconsistent with the factual aspects, more particularly, as is evident from order sheet dated 20.07.2009 the date on which there was physical presence of accused and further putting the representation petition dated 17.08.2009 out of order sheet, is also to be matter of serious concern. It is evident from the revisional court’s order that the learned revisional court had also bypassed the aforesaid theme. Consequent thereupon, the successive orders are set aside. Instant Criminal Miscellaneous is allowed. PN (Aditya Kumar Trivedi,J.)