IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32112 of 2011 Deo Nandan Singh & Ors. Versus The State Of Bihar ----------- 3/ 20/10/2011 Heard learned counsel for the petitioner as well as learned APP for the State. 2. Petitioners have challenged order dated 24.05.2011 passed by Additional District & Sessions Judge, FTC-V, Patna whereby and whereunder petitioners have been declared absconder. 3. It has been submitted on behalf of the petitioners that at an earlier occasion petitioners have come up before this Court for quashing of proceeding under Cr.W.J. No. 313 of 1987 (Annexure-2) on account of delay wherein stay was granted and it remained pending for such a long period that while disposing of vide order dated 21.08.1995 the Court while dismissing the petition observed:- “However, as the case is of 1976, the trial court is directed to dispose of the case within six months from the date of receipt/production of the copy of this order. It is made clear that if the petitioners do not appear after proper notice then the trial court will take coercive steps for their appearance and time limit fixed by the Court will become 2 inoperative”. 4. Unfortunately, the aforesaid order has been received on 24.12.2009 on which date instead of issuing summon warrant of arrest non bailable has been issued against the petitioners. So submitted that the steps taken by the learned lower court and subsequent steps including the order impugned by which petitioners have been declared absconder happens to be an order in nullity as well as in contravention of the direction given by the Hon’ble Court under Cr.W.J.C. No.313 of 1987. As such the order impugned is fit to be set aside. 5. Opposing the prayer, learned APP submitted that petitioners are at fault on their own because of the fact that while admitting Cr.W.J.C. No. 313/1987, further proceeding was stayed and not the presence of accused on the dates so fixed before lower court was directed to waived. The successive order-sheet shows that since thereafter petitioners became absent from the trial. The order dated 21.08.1995 was passed in presence of learned counsel for the petitioner and so it cannot be said that petitioners have got no knowledge with regard to ultimate result of Cr.W.J.C. No. 313/1987 and so in that condition petitioners should have made their presence 3 before the learned lower court so that the time schedule framed by the Hon’ble Court should have been properly followed up. 6. From the order dated 21.08.1995 passed in Cr.W.J.C. No. 313/1987, the Court was conscious with the conduct of the petitioners and that happens to be reason behind that a direction was given to the learned lower court in following manner:- “It is made clear that if the petitioners do not appear after proper notice then the trial court will take coercive steps for their appearance and time limit fixed by the Court will become inoperative”. 7. That means to say after receipt of copy of the order, it was incumbent upon learned lower court to firstly issue summons against the petitioners as well as should have ensured its proper service which is lacking as is evident from successive order-sheets filed by the petitioners through supplementary affidavit. Not only this, it gives a contrary picture as the order was received on 24.12.2009 on which date instead of issuing summons, warrant of arrest non bailable was issued against the petitioners, which, in the facts and circumstances appears to be inconsistent with the 4 direction of the Hon’ble Court. Therefore, whatever steps have been taken and followed up by the learned lower court for procurement of presence of petitioners was not at all justifiable in the background of the order of the Hon’ble Court passed earlier in connection with Cr.W.J.C. No. 313 of 1987. Consequent thereupon the order dated 24.05.2011 is set aside. Petition is allowed. 8. The order is passed in presence of learned counsel for the petitioners and in his presence direction is given to the effect that petitioners will make their physical presence on the next date so fixed positively failing which the liberty whatever has been given by the instant order will cease to effect. 9. It is further directed that petitioner will make their presence on 3.11.2011. perwez (Aditya Kumar Trivedi,J.)