1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2943 OF 2010 1. Uddhavrao S/o.Nivrutti Sarkale, Age-70 years, Occu-Agriculturist, 2. Markand S/o.Uddhavrao Sarkale, Age-34 years, Occu-Business, 3. Sau.Anandibai W/o.Uddhavrao Sarkale, Age-65 years, Occu-Household, All R/o.Petrol Pump Chowk, Terna Nagar, Tq. and Dist. Osmanabad APPLICANTS VERSUS The State of Maharashtra RESPONDENT Mr.J.R.Patil, learned counsel for applicants. Mrs.V.A.Shinde, learned APP for State CORAM : A.V.POTDAR, J. DATE : 17/08/2010 ORAL JUDGMENT : 1. By the present application, the applicants, who are accused in RCC No.381/2001, pending on the file of 2nd J.M.F.C. at Osmanabad, have assailed the order passed below Exh.103 by which the learned J.M.F.C. had allowed the application of prosecution to frame additional charge against the applicants u/s. 2 229(A) of The IPC. 2. It appears that the said order came to be challenged before this Court and circulation was taken on 03/08/2010. At that time, implementation of the order impugned was stayed. 3. Rule. 4. Rule made returnable forthwith. 5. Considering the small issue involved in this matter, heard finally at the stage of admission itself. 6. Such of the facts which are necessary for the just decision in this matter can be summarized as follows : The offence came to be registered against the applicants in Dhoki Police Station, on the information received from one Shrikrushna Gandhe on 22/06/2001 for an offence punishable u/s. 39, 44 of The Indian Electricity Act. It appears that after completion of investigation, on 30/06/2001, charge sheet was filed in the Court of Judicial Magistrate, F.C. Osmanabad against the applicants accused. The applicants appeared before the Trial Court on 08/11/2001, and they were released on bail as per order of the learned J.M.F.C. court. It further appears that the trial was waiting to frame charge for the period of 2 years, and on 30/04/2003, charge was 3 framed against the applicants/accused for the offence punishable u/s. 39, 44 of The Indian Electricity Act r/w. 34 of IPC. It appears that on 02/03/2007, an application was moved for issuance of witness summons. 7. It appears from the Roznama that the first witness was examined by the prosecution on 04/06/2008, 2nd witness was examined on 07/11/2008, 3rd witness was examined on 19/08/2009 and 4th witness was examined on 22/01/2010. It further shows that witness no.1 was sent back on 6 occasions in view of the adjournment applications filed by the defence lawyer. As against this, on 3 occasions, the matter was adjourned as the concerned Presiding Officer was on leave, while on 1 occasion, witness was sent back as the learned APP was on leave. It appears from the contents of the Roznama that after framing of charge, on 13 occasions, for one reason or another, no summon was issued by the Court staff to secure attendance of witnesses of the prosecution. As the first witness remained absent on 5 occasions, bailable warrant was issued against him to secure his presence. On 3 occasions, bailable warrant was issued to secure the presence of prosecution witness no.2. It is to be noted that presence of prosecution witness no.3 and 4 was also secured by issuance of bailable warrant as in response to summons, they failed to appear before the Court. 4 8. The record further shows that applicant no.1, who is arrayed as accused no.1 in the trial before the trial court, remain absent during the trial on 13 occasions. On all these occasions, applications for exemption were filed on behalf of him and for the grounds stated therein, the said applications were allowed by the Lower Court. Thus the fact remains that the reason of absence of applicant no.1, showing his unableness to attend the Court was accepted by the Court and only thereafter, exemption was granted in his favour. 9. Record and proceeding further shows that after the evidence of prosecution was closed, statement of applicants/accused were recorded u/s. 313 of The Cr.P.C. on 06/05/2010. Thereafter, it appears that on 15/06/2010, an application was moved by the APP to frame the additional charge u/s. 229(A) of The IPC to which the reply was filed by the present applicant at Exh.105 before the Lower Court on 01/07/2010. It appears that vide order dated 07/07/2010, after hearing both the sides, learned J.M.F.C. has allowed the application, which order is assailed in this application. 10. In the light of submissions across the bar, it is necessary to consider the scope of section 229A of The IPC, which read as follows : Whoever, having been charged with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of proving 5 which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Considering the submissions of learned counsel for applicants as well as learned APP, it revealed that for the first time, the bail granted in favour of applicant no.1 and 3 was cancelled by rejecting the application for exemption by the learned Trial Court. Thereafter, notices were issued to the sureties, but this order was modified vide order dated 28/07/2009. Other than this occasion, on rest of the occasions, whenever the application for exemption was moved by the first applicant, on medical ground or some other ground, as he was bed ridden due to the accident, and unable to attend the Court, exemption was granted to him. All these exemption applications were submitted coupled with medical certificate supporting the ground on which the exemption was claimed for. In the premise, it can not be said that the first applicant, after his release on bail, without any just reason, remained absent before the Lower Court and because of the his absence, trial was delayed. 11. As stated in paragraph supra, it is to be noted that even though the charge sheet was filed in the year 2001, it require more than 2 years to frame the charge as the charge was framed in the year 2003. Further the roznama shows that after charge was 6 framed in the year 2003, it took more than 3 years to issue witness summonses to secure the presence of witnesses, and the first witness was examined on 04/06/2008 by the prosecution i.e. after 5 years of framing of charge in the year 2003. During this period, only on 6 occasions, due to absence of first applicant, the case was adjourned. At the same time, it is to be noted that on 3 occasions, as the Court was on leave, the matter was adjourned and on one occasion, the APP was on leave. Considering this aspect, it can not be said that the trial was delayed due to absence of these applicants. It is to be noted that even the charge was framed in the year 2003, the last witness was examined by the prosecution in the year 2010. Within the span of 6-7 years, if on six occasions, witness was sent back due to absence of one of the accused applicant, the accused applicant can not be faulted on bare perusal of text of section 229(A) of The IPC. It is also clear that the accused did not take dis-advantage of the relief granted in his favour and has attended the Court to face the trial and because of this, trial is delayed. It appears that the learned Lower Court was impressed with the submissions of learned APP that the delay caused to dispose of the trial is because of the delaying tactics played by the applicant accused. At the same time, the learned Lower Court also require to consider whether at any point of time during this period, except the order dated 15/07/2009, whether the bail bond of the accused was cancelled due to his absence before the Court. In absence of it, the order assailed is 7 not supported with the cogent reasons recorded by the learned J.M.F.C. In the result, the order to frame charge against the applicant u/s. 229(A) of The IPC do not sustain. In the substance, the order passed below Exh.103 dated 07/07/2010 is require to be quashed and set aside. The order impugned to frame the charge against applicant u/s. 229(A) is not sustainable in law. Accordingly it is quashed and set aside. 12. Rule thus made absolute as indicated above. 13. Application stands disposed of accordingly. No order as to costs. If no date is fixed for the appearance of these applicants before the Lower Court, applicants to appear before the Lower Court on 31/08/2010. Certified copy of this order is expedited. (A.V.POTDAR, J.) khs/AUG 2010/cri.appl.2943-10