IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13988 of 2011 1. Shanti Singh, wife of Kamlesh Kumar Singh, resident of Friends Colony, road No.2, Asiananagar, Patna. 2. Ashok Kumar Singh, son of Ram Narain Singh, resident of village Nashirna, P.O.-Manikpur, P.S.-Kurtha, District-Arwal. ….Petitioners. Versus The State of Bihar ----------- 2 06.09.2011 Heard. Being aggrieved by and dissatisfied with an order dated 03.01.2005 passed by learned Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No.504/93, State Versus Akhilesh Singh & Ors. whereby a representation petition under Section 317 of the Cr.P.C. has been rejected, caused a grievance to the petitioner, namely, Shanti Singh and Ashok Kumar Singh to file instant petition under section 482 of the Cr.P.C. Though the conduct of the petitioners do not permit to seek their grievances redressed by invoking the proper forum, being a habitual one and secondly remaining outside consecutively for five years virtually gave hurdle to the prosecution in smooth sailing of its case by having their non-appearance for such long tenure, without any legal excuse. However, the order impugned appears to be a composite order where under a petition under Section 317 of the Cr.P.C. was rejected simultaneously warrant of arrest non-bailable having been issued which as per para-16 of decision reported in 2009 (2) PLJR 260 appears to be non-permissible. For better appreciation para-16 is reproduced:- “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 2 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. In the aforesaid facts and circumstances of the case, the order impugned is set aside consequent thereupon the instant petition is allowed subject to condition that they will remain physically present before the learned lower court till conclusion of trial. PN (Aditya Kumar Trivedi,J.)