IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.26099 of 2011 ============================================= Ram Prasad Thakur & Ors. .... .... Petitioner/s Versus The State Of Bihar & Anr. .... .... Opposite Party/s ============================================= Appearance : For the Petitioner/s : Mr. Manoj Kumar Jha, Adv & Mr. Om Prakash Tiwary For the O.P. : Mr. Ajay Kumar Jha, APP ======================== 2/ 19th August 2011 Hear the parties. Petitioners being aggrieved and dissatisfied with an order dated 20.08.2010 passed by SDJM, Bhagalpur in G.R. No.531/2009 whereby and where- under after rejecting a petition under Section 317 of the Cr.P.C. cancelled the bail bond and issued non bailable warrant of arrest followed with an order dated 24th June 2011 passed by the Additional Sessions Judge, FTC-V, Bhagalpur in Cr. Revision No. 359 of 2010 whereby and where-under the Revision petition has been dismissed. The instant petition has been filed invoking inherent jurisdiction vested with this Court under Section 482 of the Cr.P.C. Submission is that on 20.08.2010 2 though the case was posted for framing of charge but due to some exigencies petitioners were represented under Section 317 of the Cr.P.C which was not moved on account of slackness of conducting Advocate as well as having the prayer simultaneously to grant adjournment on the ground of ailment of conducting Advocate so that they could file a petition for discharge, the same was rejected by the order impugned resulting cancellation of bail bond followed with issuance of non bailable warrant of arrest. It has been submitted on behalf of the petitioner that the composite order rejecting the representation petition filed under Section 317 Cr.P.C and cancelling the bail bond is non permissible in light of the judicial pronouncement by this Court reported in 2009(2) PLJR 260 as well as 2011(3) PLJR 286. So submitted that the order impugned happens to be bad in law and is accordingly fit to be set aside. On the other hand, learned APP opposed the prayer and submitted that the accused-petitioners adopted dilly delaying tactics just to linger the proceeding as on previous date alone they were directed 3 to be physically present for framing of charge. That means to say, they were all aware with the intention of the Court. Whether the Court is competent to reject 317 Cr.P.C and simultaneously empowered to cancel bail bond, for which I would like to refer paragraph-16 of the decision reported in 2009 (2) PLJR 260; “ 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 4 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. From the aforesaid citation it is evident that the learned lower court was wrong in his action while rejecting petition under Section 317 of the Cr.P.C. simultaneously cancelling the bail bond and issuing non bailable warrant of arrest. The same principle has also been reiterated subsequently in 2011(3) PLJR 286. In the aforesaid facts and circumstances, the order impugned is set aside. Consequent thereupon, the instant petition is allowed. perwez (Aditya Kumar Trivedi, J.)