- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the State.
(2.) THIS application is directed against the order dated 26.07.2012 passed by learned Judicial Magistrate 1st class, Palamu in connection with Hussainabad P.S. Case No. 36 of 2009 (G.R. No.399 of 2009), whereby and whereunder warrant of arrest was ordered to be issued and also against the order dated 05.12.2012, whereby and whereunder, processes under Sections 82 and 83 have been ordered to be issued against the petitioner. Mr. I. Sinha, learned counsel appearing for the petitioner submits that in course of trial, the petitioner was being represented through his lawyer, but on 26.07.2012, neither the petitioner did appear nor any application under Section 317 Cr.P.C. was filed and hence, the court did cancel the bail -bond and passed an order for issuance of warrant of arrest, non -bailable, which order is not in consonance of the provision as contained in Section 317 (2) Cr.P.C. If the petitioner did not appear on the date fixed, the court should have fixed a date for physical appearance of the petitioner but the court without directing the petitioner to appear physically on the next date, straight away cancelled the bail bond and thereby, order dated 26.07.2012 is quite illegal. Learned counsel appearing for the petitioner further submits that the order dated 05.12.2012 is also illegal, as without having any report, regarding execution of the warrant of arrest, processes were issued simultaneously, under Sections 82 and 83 Cr.P.C. However, learned counsel appearing for the State submits that since the accused did not appear on the date fixed, the bail bond was cancelled and warrant of arrest was ordered to be issued and, thereby, the court did not commit any illegality. In the context of the submission, one may take notice of the provision, particularly sub clause 2 of Section 317, which reads as follows: - "Section 317(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 adjourns such inquiry or trial, or order that the case of such accused be taken up or tried separately".
(3.) BY taking notice of the said provision, the Hon'ble Patna High Court in a case of Sandeep Kumar Tekriwal Vs. State of Bihar and Ors. reported in 2009(1) East Cr. C. 233 (Patna) did observe as follows: - Section 317 Cr.PC 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. PC 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 Cr. PC and may also cancel bail and bail bond and proceed in accordance with Chapter XXXIII of the Cr. PC.;