K.N.Sinha - (1.) -Heard learned counsel for the revisionists, learned A.G.A. and perused the order passed by the trial court. It appears that during trial on 5.8.2004 the accused/revisionists moved application for their exemption from attendance through counsel. No order was passed on that application.
(2.) THE facts of this case are peculiar in nature. THEy show the ignorance of law on the part of the Court. THE trial was under Section 308/325, I.P.C. THE accused on 5.8.2004, did not appear in the Court. However, an application for exemption from attendance on this date was moved through counsel. It seems that the trial court did not pay any attention to this application. Since no order was passed on the said application before passing the order of cancellation of bail, the impugned order was uncalled for. THE order is unreasonably harsh on the applicant. It prima facie is unwarranted. Not only the bail was cancelled, sureties were noticed and non-bailable warrants issued but the step next to it was also taken. THE wrath of the Court is evident so much so that he also directed for drawing proceedings under Section 82/83, Cr. P.C. This is exceeding of the authority clearly. Normally order under Section 82/83, Cr. P.C. should have been passed only if the accused persons had evaded the execution of non-bailable warrant and could not be arrested and produced by the police before the Court. Simultaneous passage of two orders, non-bailable warrant, notice to sureties, forfeiture of bail bonds along side issuance of proceeding under Section 82/83, Cr. P.C. therefore, are exclusively harsh upon an accused especially when their application for exemption from attendance was already pending consideration before the same Judicial Officer. The pendency of the application for exemption from attendance is clear from the certified copy of the application appended to the revision by the counsel. There cannot be any doubt therefore, about its existence. Thus, the power of the Court without rejecting that application in drawing the proceedings under Section 82/83, Cr. P.C. cannot be claimed to be sound and tantamounts to abuse of the authority. The order of cancellation of bail and drawing of the proceedings under Section 82/83, Cr. P.C. ought to have been passed only after deciding that application. It is unfortunate that the trial Judge does not know what language is to be used. Instead of stating that bail is cancelled, he has said that 'liberty of bail is withdrawn'. It is not withdrawn but cancelled. There are principles on which alone such an order can be passed. The law only recognise either grant of bail or cancellation of bail. Nothing is in between. The officer must know that before the proceedings under Section 83, Cr. P.C. can be drawn a proceeding ought to be drawn under Section 82, Cr. P.C. and if the accused does not respond to the notice only then the police officer use to move the Court for initiation of proceeding under Section 83, Cr. P.C.
(3.) SIMULTANEOUSLY both the proceedings cannot be drawn normally. It can be drawn only if the above situation is clearly available to the Court. Therefore, I am in agreement with the learned counsel's submission that proceedings under Section 82/83, Cr. P.C. cannot be drawn unless the non-bailable warrant remains unexecuted for the mischief of the accused. Thirty days later the proceedings under Section 82, Cr. P.C., proceeding under Section 83, Cr. P.C., can be drawn in law. These are the distinctions which are to be borne in mind by the Additional Sessions Judge, who passed the impugned order. The Officer is the First Additional Sessions Judge, meaning thereby that he has sufficient experience. An experienced officer is not expected to commit such mistakes of law, which professes his ignorance of the same. It appears that officer has forgotten to revise the laws. This is not a healthy state of affair. If the Court will not adhere the laws how can it be expected from the others. The proper procedure for drawing the proceedings under Section 82/83, Cr. P .C. read as under : Section 82, Cr. P.C. lays down that the process under Section 82 can be issued only if the Court (whether after taking evidence or not) comes to the conclusion that any person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.;