Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.128 of 2013 ====================================================== Prabhat Kumar son of Sri Dinesh Prasad Singh, resident of Mohalla- Sri Krishna Puri, P.S.- Begusarai, District-Begusarai. Versus .... .... Petitioner/s 1.The State of Bihar through the Law Secretary, Patna, Bihar 2.The Magistrate 3.Smt. Nidhi Kumari wife of Dr. Sheonandan Choudhary, Nil Koyhi, Launch Ghat, Barrari, P.S.-Barri, District-Bhagalpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. S.K.Lal, Advocate Mr.Pritish Kumar Lal , Advocate For the Respondent/s : Mr. Rakesh Kumar Samendra, S.C.-XXI ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 3 12-02-2013 Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State. The prayer of the petitioner is to quash the order dated 11.10.2012 passed in Complaint Case No.742 of 2009 by the learned Sub Divisional Judicial Magistrate, Bhagalpur whereby and whereunder by a composite order he has rejected the petition filed on behalf of the petitioner under section 317 of the Code of Criminal Procedure (for short “the Code”), cancelled his bail bonds and directed for issuance of non-bailable warrant of arrest against him. The petitioner’s wife had filed a complaint case in which pursuant to the enquiry the court took cognizance of the offence punishable under sections 498A of the Indian Penal Code
Facts
Patna High Court CR. WJC No.128 of 2013 (3) dt.12-02-2013 2 and section 4 of the Dowry Prohibition Act. The petitioner and other accused persons were summoned to face trial. It is contended that on 8.2.2010 the learned Magistrate directed the complainant to examine the witnesses before charge. On 6.8.2010, one witness was examined on behalf of the complainant and thereafter no witness was examined on any date including 20.11.2011 when the case was adjourned to 23.1.2012. However, on 7.1.2012, the complainant had filed a petition but the same was not pressed. On 23.1.2012, the learned Sub Divisional Judicial Magistrate directed the defence to file a rejoinder to the said petition fixing 14.2.2012 as the next date. The defence filed rejoinder to the aforesaid petition. A petition filed on behalf of the complainant was partly heard on 5.7.2012. Thereafter, on 7.8.2012, the learned Sub Divisional Judicial Magistrate directed the petitioner to remain physically present on 29.8.2012. On 29.8.2012, the petitioner was physically present in obedience to the order passed by the court on 7.8.2012 but on that date the case was adjourned to 11.10.2012 even without hearing on the petition dated 7.1.2012. On 11.10.2012, a petition was filed under section 317 of the Code on behalf of the petitioner and the other two accused persons for dispensing with their personal attendance as due to Patna High Court CR. WJC No.128 of 2013 (3) dt.12-02-2013 3 some compelling reasons they were unable to attend the court in person. The learned Sub Divisional Judicial Magistrate, by a composite order dated 11.10.2012, rejected the application filed under section 317 of the Code, cancelled the bail bonds and directed for issuance of non-bailable warrant of arrest so far as the petitioner is concerned. However, by the same order the learned Sub Divisional Judicial Magistrate allowed the application of two other co-accused persons filed under section 317 of the Code.
Legal Reasoning
decision of this court in Sandeep Kumar Tekriwal v. State of Bihar & Anr. since reported in 2009 (1) BCCR 140 (Pat). It would be relevant to quote paragraph 22 of the said judgment which reads as under: Patna High Court CR. WJC No.128 of 2013 (3) dt.12-02-2013 4 “22. In view of aforesaid findings, I find that the learned Magistrate exceeded his jurisdiction by cancelling bail and bail bond and issuing non-bailable warrant of arrest while rejecting the representation under section 317 Cr.P.C., vide one composite order dated 28.6.2008, without any prior order on preceding dates directing the personal attendance of petitioner and as a result the same is set aside. The petitioner is directed to appear before the learned Magistrate within six weeks from today who would allow him to remain on previous bond. The petitioner would abide by any further direction of Magistrate in the proceeding.” Learned counsel for the State does not seriously contradict the submissions advanced on behalf of the petitioner. He is in agreement with the law laid down by this court in case of Sandeep Kumar Tekriwal (supra). Having heard the parties at length, I find that the order passed by the learned Sub Judicial Magistrate, Bhagalpur cannot be sustained. The process of courts should not be used for harassment of the party. The courts are entitled to compel the appearance of the accused. But such appearance should not be for mere pleasure of the court to see the accused in the dock. As noted Patna High Court CR. WJC No.128 of 2013 (3) dt.12-02-2013 5 above, by the impugned order itself the attendance of the two other co-accused persons was dispensed with and they were allowed to be represented through their lawyer. Under such circumstances, there was no justifiable reason for the court to reject the application of the petitioner filed under section 317 of the Code. In my view, to insist on appearance of an accused when his appearance is nothing to do with the progress of the case would only be counter productive, especially when a duly appointed lawyer is prepared to represent the accused. Apparently, in the present case the appearance of the petitioner on 11.10.2012 in the court had nothing to do with the progress of the case. Taking into consideration the facts and circumstances of the case as well as the law laid down by this court, the order dated 11.10.2012 passed in Complaint Case No.742 of 2009 by the learned Sub Divisional Judicial Magistrate, Bhagalpur, is set
Arguments
It is contended that on 29.8.2012 when the petitioner was physically present in the court there was no direction of the court to remain physically present on the next date. Learned counsel submits that if the learned Sub Divisional Judicial Magistrate did not think it proper to allow the application of the petitioner filed under section 317 of the Code, he could have directed the petitioner to appear in person on the dates next but he should not have cancelled the bail bonds and issued non-bailable warrant of arrest against him petitioner. In this regard learned counsel places his reliance on a
Decision
aside. The writ petition is allowed, accordingly. The petitioner is directed to appear before the learned Sub Divisional Judicial Magistrate, Bhagalpur within three weeks from today and, on such appearance, he would be allowed to remain on bail. The petitioner would abide by any further Patna High Court CR. WJC No.128 of 2013 (3) dt.12-02-2013 6 direction of the learned Sub Divisional Judicial Magistrate, Bhagalpur in the proceeding. The order may be communicate through fax at the cost of the petitioner. Md.S./- (Ashwani Kumar Singh, J)