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2012 DIGILAW 220 (HP)

Ram Singh v. State Of Himachal Pradesh

2012-04-25

DEEPAK GUPTA

body2012
JUDGMENT : Deepak Gupta, J. - This petition is directed against the order dated 18th April, 2012 passed by the learned Judicial Magistrate Ist Class, Anni whereby he did not grant bail to the accuse d and directed that the accused shall remain in judicial custody up to the next date i.e. 28.4.2012. 2. Briefly stated, the facts of the case are that an FIR was registered against the accused on 3.2.2011. The learned trial Court felt that a prima facie case was made out and he framed charges against the accused for having committed the offices punishable under Sections 451, 354 and 506 IPC. The case was then listed for evidence of the prosecution witnesses on 17.6.2011 and 18.6.2011. From the record it is apparent that the learned Judge was on leave on these dates and the case was taken up on 18.6.2011 and ordered to come up for proper orders on 21.7.2011. When the matter was listed on 21.7.2011 the accused was present in person and thereafter the case was fixed for prosecution witnesses on 21.12.2011 and 22.12.2011. On both these days the learned Presiding Officer was on tour and it was noted by some official of the Court that since the Presiding Officer was on tour as such the case be listed for proper orders on 12.3.2012. 3. On 12.3.2012 neither the accused nor his counsel were present and the learned trial Court passed the following order: "In the present case previous date of hearing was 22.12.2011 and as per that order of the Court neither the accused nor any one on his behalf was present in the Court which was his duty to appear in the Court and further more, it was also the duty of the accused to note down the next date of hearing i.e. to day's date of hearing and to appear in the Court for today and he preferred not to appear in the Court today nor on the last date of hearing i.e. 22.12.2011 leaving the Court to chase him and it appears that his intention not to appear in the Court is mala fide and he is personally interested in delaying the proceedings in the present case. Hence the bail bonds of the accused are cancelled and forfeited to State of Himachal Pradesh Let his presence be procured through NBW returnable for 18.4.2012. Hence the bail bonds of the accused are cancelled and forfeited to State of Himachal Pradesh Let his presence be procured through NBW returnable for 18.4.2012. Proceedings under Section 446 Cr.P.C. be also initiated against the accused and his surety. Ahlmad to comply with this order immediately." 4. On 18.4.2012, the accused was produced in the custody of Constable Mohar Singh and also filed a bail application for being released on bail. The learned trial Court directed that the application be listed on 28.4.2012 and in the meantime the petitioner accused was remanded to judicial custody. 5. The petitioner initially filed a Cr.W.P. No.4 of 2012 challenging this order which was dismissed on 20.4.2012 with liberty to move the present petition. Thereafter, the present petition has been field and in this petition the petitioner was directed to produce the copy of the earlier order dated 13.3.2012 and today before me the entire zimni order sheets of the case have been produced. 6. From the material on re cord, it is more than obvious that on 12.3.20 12 the case was taken up only for proper orders. On the previous date the learned Judge was on tour. A litigant or accused is expected to appear before the court only when it is presided over by the Judge. In case the Judge is going on tour or leave there are instructions issued by the High court that he can pass a general order before proceeding on levee or tour to adjourn the cases for effective hearing to a particular date, but this order can be passed only by the Judge before he proceeds on leave or tour. If the learned Judge does not pass such order then the Reader or any other official who records the proceedings cannot pass any effective orders and can only adjourn the case for proper orders. 7. On 12.3.2012 the case was taken up for proper orders and the learned trial court came to the conclusion that the accuse d is trying to delay the process and his not appearing in the court is mala fide. From the record, it does not appear that the case was taken up by any official of the Court on 21.12.2011. The case was fixed for two dates i.e. 21 and 22.12.2012 and should have been first taken up on 21.12.2011. From the record, it does not appear that the case was taken up by any official of the Court on 21.12.2011. The case was fixed for two dates i.e. 21 and 22.12.2012 and should have been first taken up on 21.12.2011. If it was not taken p on that date the accused would reasonably presume that the matter would not be taken up on the next date also. The case should have in fact been taken up on 21.12.2011 i.e. the first date and thereafter the witnesses present should have been discharged. Nothing has been stated in these orders as to whether witnesses were present or not. Even the presence of Public Prosecutor is not marked. 8. In these circumstances, it could not be expected that the accused should remain present on 12.3.2012 the date which was fixed in his presence. Therefore, the learned trial Court was not at all justified in passing the order on 12.3.2012 ordering issuance of non-bailable warrants and initiating proceedings under Section 446 Cr.P.C. Further more, once the accused was produced in custody on 18.4.2012 in my view the learned trial court should have cancelled the non-bailable warrants and enlarged the accused on bail because the only charge against him was that he had not appeared in the Court on the previous date which as I have held above was not possible since the date was given in the absence of the accuse d. The proper course would have been to have is sued bailable warrants or notice to the accuse d on 12.3.2012 and he should have been asked to be present on the next date. If he had not appeared on the next date then only non-bailable warrants could have been issued. 9. It must be clearly understood that the liberty of every citizen is paramount. No doubt if an accused misuses the facility of bail granted to him, the court is justified in cancelling the bail or initiating proceedings against the surety. If he had not appeared on the next date then only non-bailable warrants could have been issued. 9. It must be clearly understood that the liberty of every citizen is paramount. No doubt if an accused misuses the facility of bail granted to him, the court is justified in cancelling the bail or initiating proceedings against the surety. However, if the accused is not present on a date which is fixed in his absence and on which date the case is listed only for proper orders and furthermore on the previous date the order was passed in the absence of the Presiding Officer of the Court, the accused is not legally bound to appear on the next date and hence no orders could have been passed for initiating proceedings under Section 446 Cr.P.C. or even issuance of non-bailable warrants against him. 10. Therefore, the order dated 12.3.2012 is wholly illegal and the order dated 18.4.2012 is very harsh and the second order must fall with the earlier order. Therefore, the petition is allowed and both the orders dated 12.3.2012 and 18.4.2012 are quashed and set-aside. The petitioner is directed to be enlarged on bail on his furnishing bail bonds in the sum of Rs. 10,000/- with one surety of the like amount to the satisfaction of the learned trial court or the superintendent Model Central Jail, Kanda where the petitioner is presently lodged, undertaking therein to appear before the learned trial court on each and every date of hearing unless specifically exempted. 11. An authenticated copy of this order be supplied to the parties by the Court Master during the course of the day today.