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2014 DIGILAW 446 (JHR)

Roma Mukherjee v. State of Jharkhand

2014-03-31

R.R.PRASAD

body2014
ORDER Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. Mr.Sen, learned counsel appearing for the petitioner submits that in a case bearing C/1 case no.45 of 2010 in which the petitioner had been put on trial, an application under Section 317 of the Code of Criminal Procedure was filed on 4.1.2012 praying therein to allow her to be represented through her Lawyer. That application was rejected as the counsel appearing for the petitioner did not appear before the court. At the same time, non-bailable warrant of arrest was ordered to be issued against the petitioner. 3. It was further submitted that without having any report relating to execution of warrant of arrest, process under Section 82 of the Code of Criminal Procedure has been ordered to be issued, vide order dated 4.9.2012 and then on 18.10.2012, process under Section 83 of the Code of Criminal Procedure has been ordered to be issued without having any report relating to execution of the process and then an order was passed on 20.5.2013 whereby the petitioner was declared absconder and therefore, under the circumstances, none of the orders seem to have been passed in accordance with law and thereby all the orders, referred to above, are fit to be set aside. 4. Having heard learned counsel appearing for the parties and on perusal of the order, it does appear that an application was filed under Section 317 of the Code of Criminal Procedure wherein prayer was made to allow her to be represented through her Lawyer. Since the Lawyer did not appear, that application filed under Section 317 of the Code of Criminal Procedure was rejected and the warrant of arrest non-bailable was ordered to be issued. That order never seems to be in consonance with the provision as contained in Section 317 of the Code of Criminal Procedure. 5. The said provision 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, order that the case of such accused be taken up or tried separately.” 6. From perusal of the said provision, as referred to above, it does appear that Section 317 of the Code of Criminal Procedure provides for inquires 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 but here in the instant case as it appears that the court though adjourned the case for the next date for appearance of the petitioner but at the same time, rejected the application filed under Section 317 of the Code of Criminal Procedure and passed an order for issuance of warrant of arrest non-bailable against the petitioner and thereby the said order never appears to have been passed in accordance with law. Accordingly, the order dated 4.1.2012 is hereby set aside. 7. Further it appears that none of the orders under which process under Sections 82 and 83 of the Code of Criminal Procedure and also the order passed on 20.5.2013 seem to have been passed in accordance with law. Accordingly, those orders are also set aside. 8. Accordingly, this application stands allowed. 9. However, the petitioner is directed to appear physically before the court below within three weeks from today.