IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.189 of 2010 1. BIRENDRA SINGH 2. RAJU SINGH 3. VIJAY SINGH AND 4. KISHORI SINGH, ALL RESIDENT OF SALARPUR, POLICE STATION WAZIRGANJ, GAYA. VERSUS 1. STATE OF BIHAR & 2. SRI RAM BINOD SINGH, ADDITIONAL SESSIONS JUDGE-CUM- F.T.C.NO. III, GAYA. ----------- 2 30.08.2010. As prayed, counsel for petitioners is permitted to delete words “ arbitrary, whimsical and fanciful matter” from para 12 of the writ petition. Petitioners have come to this Court for quashing order dated 13.1.2009, passed by Additional Sessions Judge- cum- F.T.C.No. III, Gaya in Sessions Trial No. 52 of 2006, arising out of Wazirganj Police Station Case No. 61 of 2002, by which their petition under section 317 Cr.P.C. has been refused and non-billable warrant has been issued against them in the aforesaid case. Learned counsel for the petitioners submits that it was open for the court to reject the petition u/s 317 Cr.P.C. with direction to them to remain present in person on the next date. The learned Magistrate while rejecting their petition, straightway issued NBW way back on 13.1.2009. In support of the contention, he relied on a decision rendered in case of 2 Sandeep Kumar Tekriwal Vs. The State of Bihar and another, reported in 2009(2) PLJR,260. Heard Mr. Sudhir Singh, learned counsel for the petitioners and Mr. S.K.Mishra, AC to GA 2. After examining the scope and extent of section 317 Cr.P.C., this Court in the aforesaid case held that the Magistrate would be within his right to reject an application u/s 317 Cr.P.C. but by the same stroke of pen he cannot issue NBW straightway. The court could have directed them to appear in person on the next date, failing which it was open for it to issue NBW. It would be relevant to quote para 16 and 17 of the aforesaid judgment for easy reference. 16. Section 317 Cr.P.C. provides 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 3 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 latches in his part. 17. In the instant case, the learned magistrate not only rejected application under section 317 Cr.P.C., but also cancelled the bail bond and issued non bailable warrant of arrest by a composite order dated 28.6.2008, which is impermissible under section 317 Cr.P.C. If the magistrate did not think it appropriate to allow the representation of petitioner under section 317 Cr.P.C. any more, it could have directed the petitioner to appear in person on dates next. Even then it petitioner or accused does not appear for reasons which do not seem valid to the magistrate, he may proceed to issue warrants as provided in Chapter VI of Cr.P.C. and cancel bail and bail bonds as engrafted in Chapter XXXIII Cr.P.C., as noticed in para 16. The leaned magistrate as such exceeded jurisdiction vested in him and exercised the same erroneously. In view of settled principle of law, impugned order dated 13.1.2009 by which NBW has been issued against petitioners, is hereby set aside. As the NBW was issued way back on 13.1.2009, the trial court is directed to fix the date of hearing the instant case soon after 7th September, 2010. 4 Petitioners would be allowed to remain on the same bail bond, provided he deposits a sum of Rs. 500/- each in the court below, which may be utilized, either for the legal aid purpose or on the expenditure of witnesses in travelling. The writ petition is allowed to the extent above with direction to the trial court to expedite the trial. Let this order be communicated to the court above through FAX at the cost of the petitioners. Shashi. (Samarendra Pratap Singh, J.)