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2015 DIGILAW 1211 (ALL)

Vivek Jain (N. R. H. M) v. C. B. I

2015-05-13

SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT Surendra Vikram Singh Rathore,J. Learned counsel for the parties were heard and record was perused. 2. By means of the instant application under Section 482 Cr.P.C., the applicant has made prayer to quash the order dated 03.02.2015 which has been passed on his application whereby he had made a prayer to recall the process dated 01.01.2015 issued against applicant Vivek Jain whereupon the Court passed the following order: - "Accused is present in person in Court. He has been heard on application and counsel for CBI has also been heard and record has been perused. In view of abscondence of accused process under Section 82/83 Cr.P.C. was issued against him which is mentioned in order sheet dated 01.01.2015 and 23.12.2014. Hence, there exist no ground for recalling of process issued against him. Accused is present today. He be taken into custody in this case." 3. Submission of learned counsel for the applicant is that he was granted bail by this Court vide order dated 07.10.2013 passed in Criminal Misc. Case No.1282 (B) of 2013. Thereafter, because of non-appearance of the applicant non-bailable warrant was issued against him and said order was challenged by the present applicant in Writ Petition No.8729 (MB) of 2014. The Division Bench of this Court vide order dated 06.09.2014 passed the following order: - "Considering the submissions made by learned counsel for the petitioner, it is directed that in case the petitioner appears before the court concerned on or before 10.09.2014, non-bailable warrant issued against him shall be kept in abeyance but the petitioner shall give undertaking to the court concerned that on the future dates, he shall appear before the court concerned regularly." Thereafter again in the same writ petition, the Division Bench vide order dated 14.10.2014 directed as under: - "This application has been filed praying that the applicant should be made to appear before the court below in compliance of the directions of the High Court dated 6.9.2014 only as and when required and subject to any orders being passed under Section 205 Cr.P.C. by the concerned court on the applications for exemption by the petitioner. Learned counsel submits that the applicant is being summoned even when he is not required on certain pretexts and facts, as have been stated in this application in support of the contention." 4. Submission of learned counsel for the applicant is that he was on bail. Learned counsel submits that the applicant is being summoned even when he is not required on certain pretexts and facts, as have been stated in this application in support of the contention." 4. Submission of learned counsel for the applicant is that he was on bail. His bail was not cancelled and coercive process to procure his appearance was issued, in compliance of which he appeared before the Court but in spite of that he has been taken into custody. It has been submitted that as the applicant is on bail and his bail has not been cancelled, therefore, he is not supposed to move any application for bail before the court below. In support of his submission, he has placed reliance on the pronouncement of a coordinate Bench of this Court in the case of Mahendra v. State of U.P. Reported in 2009 (84) AIC 422. The said order was passed on an application for bail whereby the coordinate Bench observed as under: - "The aforesaid provision of law shows that without prejudice to the provision of Section 446, Cr.P.C i.e forfeiting the bond and imposing the penalty and recovery of such penalty, no such person shall be released only on his own bond, in such case, if the Court before whom the bond was executed, was satisfied that there was no sufficient cause for the failure of the accused bound by the bond to comply with its condition. The proviso provided in the aforesaid section very well provides that subject to any other provision of the Criminal Procedure Code, the accused may be released in that case upon the execution of fresh personal bond for such sum of money and bond by one or more of such sureties as the court thinks sufficient. It clearly shows that whenever any accused failed to appear because of some reasons the bond, if any, executed by him in that case shall stand cancelled and forfeited for breach of condition of appearance and he may not be released only on his own bond, if the court is satisfied that there is no sufficient cause for failure of the accused to comply with the condition of the bond . No doubt in such cases accused may not be released on his own bond but the proviso to the aforesaid section empowers the court to release the accused upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the court thinks sufficient. In these state of affair of facts and the provisions of law on this point, I am of this view that this bail application does not deserve to be allowed being it infructuous and unwarranted as the accused is already on bail and his earlier bail is not yet cancelled. However, the accused/ applicant is at liberty to move a fresh application before the learned Trial Court for the prayer of releasing him upon the execution of fresh personal bond for such some of money and bond by one or more of such sureties as the trial court concerned thinks sufficient, in the light of earlier bail granted to the accused which is never cancelled nor found to be cancelled by virtue of any provision of law unless it is specifically cancelled." 5. Learned counsel for the applicant has also filed a chart to show that he was being unnecessarily directed by the trial court to attend the court even on the dates when no proceedings were fixed in the case. He has filed a chart to this effect which has been annexed in the supplementary affidavit. Perusal of the order whereby the application for his exemption was refused shows that the said application was not moved through counsel. On the contrary, his counsel had refused to represent him in the proceedings. Section 317 Cr.P.C. provides that the attendance can be exempted only through counsel and the condition is that because of the absence of the accused the proceedings should not be disturbed and must go on. Section 317 Cr.P.C. reads as under: - "317. Provision for inquiries and trial being held in the absence of accused in certain cases. Section 317 Cr.P.C. provides that the attendance can be exempted only through counsel and the condition is that because of the absence of the accused the proceedings should not be disturbed and must go on. Section 317 Cr.P.C. reads as under: - "317. Provision for inquiries and trial being held in the absence of accused in certain cases. (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (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 adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately." 6. Thus, the perusal of Section 317 Cr.P.C., shows that appearance on each and every date, in a criminal trial before the Court is the rule of law and exemption of personal attendance is an exception. The proviso to Section 439 Cr.P.C. makes it clear that an accused who is on bail can be taken into custody. Since it is an admitted fact that the applicant has already been taken into custody, therefore, the Court does consider it just to go into the legal question that has been raised by the applicant and the same is left open. 7. Keeping in view the aforesaid facts and circumstances, this petition is hereby finally disposed of with the direction to the applicant to move an application before the trial court for his release. The trial court shall release him on execution of fresh personal bonds to its satisfaction. 7. Keeping in view the aforesaid facts and circumstances, this petition is hereby finally disposed of with the direction to the applicant to move an application before the trial court for his release. The trial court shall release him on execution of fresh personal bonds to its satisfaction. The applicant shall file an undertaking before the Court that he shall remain present on each and every date fixed in the case and only in exceptional circumstances, his attendance can be exempted through counsel but in that case he shall ensure that the case shall proceed even in his absence and his personal appearance is not required in the further progress of the trial on that date. He shall ensure that his counsel remain present at the time when the case is heard, failing which the trial court shall be at liberty to pass any order in accordance with law including the order to proceed against sureties or to cancel his bail. 8. With the aforesaid direction, this petition is hereby finally disposed of.