- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the State.
(2.) LEARNED counsel appearing for the petitioner submits that the petitioner is an accused in a case registered as Sector IV P.S. case no.150 of 2010 under Sections 406, 420, 467, 468, 469, 471/34 of the Indian Penal Code. On 5.7.2013 the case was fixed for evidence. On that date, the petitioner could not appear physically and therefore, an application was filed under Section 317 of the Code of Criminal Procedure praying therein to allow the petitioner to be represented through Lawyer. On that date the witness was present but the counsel appearing for the petitioner did not appear and in such situation, bail bond of the petitioner was cancelled and warrant of arrest non -bailable was ordered to be issued against the petitioner but that order suffers from illegality as in a case when an application is filed under Section 317(2) of the Code of Criminal Procedure, the court should have directed the petitioner to appear on the next date physically if, according to the court, appearance of the petitioner seems to be necessary but the court in stead of resorting to that provision straightway cancelled the bail bond and issued warrant of arrest against the petitioners. Hence, the order is fit to be set aside. 2 For better appreciation of the submissions advanced on behalf of the petitioner, reference of Section 317(2) of the Code of Criminal Procedure to be there which reads as follows: "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. " Thus, aforesaid provision does provide for inquiry and trial being held in absence of the accused in certain cases. However, if the Magistrate considers personal appearance necessary, he may direct the accused to 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 even bail bond can be cancelled but here in the instant case the court has cancelled the bail bond on the same day when an application filed under Section 317(2) was rejected though the petitioner was physically present on the previous date and therefore, it does not seem to be the case that the petitioner had earlier been directed to remain present on 5.7.2013. Thus, the order which is impugned does not seem to have been passed in accordance with law. Accordingly, it is set aside. In the result, this application stands allowed.;