IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.931 of 2011 Saroj Devi & Ors. Versus The State Of Bihar & Ors ----------- 3/ 25/10/2011 Petitioners, Saroj Devi and Deepak Kumar Gupta who along with others figured as an accused of Sessions Trial No. 210 of 2010 pending before Additional District and Sessions Judge, FTC-III, Saharsa, challenged the order dated 28.4.2011 whereby and whereunder after rejecting their representation petition purported to be under Section 317 of the Cr.P.C faced with consequential effect by having cancellation of bail bond and issuance of warrant of arrest non bailable. Heard learned counsel for the petitioner as well as learned AC to SC-10. Petitioners are spouse. The above referred Sessions Trial was lingering for statement of accused to be recorded in accordance with Section 313 of the Cr.P.C. Absence of petitioner, Saroj Devi, as pleaded was on account of begetting a male child by way of caesarean while petitioner no.2 was looking after her. The previous order-sheet dated 16.04.2011 and 23.04.2011 suggest that inspite of having presence of other three accused, learned lower court was not at all desirous to record their statement on the other hand, insisted for presence of 4th accused, who was under process of recovery. Therefore, learned lower court by its own conduct has prolonged the trial. Apart from this, when a representation petition is rejected, an opportunity is bound to be given to the accused for having his physical presence on next date as, his absence on the specified date was acknowledged by the court itself by 2 entertaining a petition under Section 317 of the Cr.P.C. and so its rejection certainly will prejudice the accused, in case, on the same date warrant of arrest non bailable is directed to be issued after cancellation of his bail bond. The aforesaid theme has been considered by this Court at an earlier occasion and that is reported in 2009 (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 3 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. Aforesaid view has been re-affirmed as held and reported 2011(3) PLJR 286. In the aforesaid background, as well as taking into account the legal principle already settled and referred above, the order impugned dated 28.4.2011 is set aside. However, the petitioners are directed to be physically present on next date positively already fixed in this case. Simultaneously, the court is also directed to record the statement of the accused. Accordingly, the petition is allowed. perwez (Aditya Kumar Trivedi,J.)