R.R. Prasad, J. - (1.) THIS application is directed against the order dated 16.6.2012 passed in Pakur (Nagar) P.S. case No. 141 of 2007 whereby and whereunder the court having found the petitioners absent, cancelled the bail bonds and passed an order for issuance of non -bailable warrant of arrest. That order is under challenge. Mr. A.K. Kashyap, learned Sr. counsel appearing for the petitioners by drawing attention to the provision as contained in sub -clause (2) of Section 317 submitted that if the petitioners were absent on the date fixed, the court should have fixed another date for personal attendance of the petitioners if the court is of the view that their personal attendance are necessary but without resorting to that provision, bail bond has been cancelled and the warrant of arrest has been ordered to be issued and thereby the order impugned suffers from illegality.
(2.) IN the context of the submission, one needs to take notice of the provision as contained in Section 317 which reads as follows: 317. Provision for inquiries and trial being held in the absence of accused in certain cases - (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately. From perusal of the provision, it does appear that if the accused is not represented by a Pleader or absent himself, the court if considers their attendance necessary, may fix another date for their presence or he may pass an order for taking the trial separately.
(3.) THUS , Section 317 of the Code of Criminal Procedure 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 should remain present physically on the next date and 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 law and may also cancel bail.;