Suleman Kaji son of late Hafij Kaji v. State of Jharkhand
2016-04-18
ANANDA SEN
body2016
DigiLaw.ai
ORDER : Ananda Sen, J. Aggrieved by the order dated 17.3.2015 and 26.3.2015 passed by the District and Additional Sessions Judge XIII, Dhanbad in connection with Nirsa P.S. Case no. 38 of 2000, the petitioners have preferred this revision application. 2. Before proceeding in this matter, the order dated 17.3.2015 and 26.3.2015 needs to be reproduced hereunder:- “17.3.2015-Accused is absent today and takes no step, so his bail is cancelled, office to issue non-bailable warrant of arrest. Put up on 26.03.2015. 26.3.2015- Accused is absent, office to issue process u/s 82-83 Cr.P.C. Put up on 09.04.2015 for order.” 3. From the aforementioned orders it is apparent that accused petitioners did not appear in the court below, in course of trial, thus, the court below cancelled the bail on 17.3.2015 and issued non-bailable warrant of arrest for appearance of the petitioners and thereafter again on the next date, issued process under Section 82 and 83 Cr.P.C. 4. Learned counsel appearing for the petitioners submits that both the orders are absolutely bad in law and cannot be sustained. He further submits that the trial court failed to take into consideration that the petitioners were regularly appearing before the trial court but could not take proper steps for a few days and thus, very harsh order has been passed against the petitioners. 5. The petitioners further contended that the instant criminal case being Nirsa P.S. Case no. 38 of 2000 is pending for the last 16 years and there being no substantial progress of the trial and therefore, the court below could not have passed the order impugned. 6. I have heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 7. FIR was instituted under Sections 341, 337, 427,506 and 307 of the Indian Penal Code and was registered as Nrisa P.S. Case no. 8 of 2000. These petitioners are the accused. The petitioners were granted bail and thereafter the trial commenced as the charge in the instant case was framed on 4.3.2003. P.W.1 was examined on 10.6.2003. P.W.2 was examined on 25.8.2006.P.W.3 was examined on 4.3.2008. P.W.4 was examined on 4.3.2014. From the lower court record it also appears that petitioners were more or less regularly represented under Section 317 Cr.P.C by their Lawyer or were personally present in court.
P.W.1 was examined on 10.6.2003. P.W.2 was examined on 25.8.2006.P.W.3 was examined on 4.3.2008. P.W.4 was examined on 4.3.2014. From the lower court record it also appears that petitioners were more or less regularly represented under Section 317 Cr.P.C by their Lawyer or were personally present in court. The record also suggests that on 20.1.2015, no steps were taken on behalf of the accused but again 9.2.2015, the accused were being represented under Section 317 Cr.P.C. by their Lawyer. Thereafter on three subsequent dates i.e. 23.2.2015, 2.3.2015 and 16.3.2015, no steps were taken on behalf of the accused. So on 17.3.2015, the court below cancelled the bail which was earlier granted and issued non-bailable warrant of arrest and fixed the date on 26.3.2015. Again on 26.3.2015, the processes were issued under Sections 82 and 83 of the Code of Criminal Procedure. 8. From the order dated 26.3.2015 it is clear that on the very same date, the processes under Sections 82 and 83 have been issued. This order is absolutely illegal. From the order dated 26.3.2015, the basic requirement for issuing process under Section 82 is missing. Nowhere it has been recorded that the accused persons are absconding or concealing themselves so that the warrant cannot be executed. There is no service report of the non-bailable warrant which was issued on 17.3.2015. Furthermore both the processes under Sections 82 and 83 cannot be issued on the very same date as that is not the mandate of law. 9. Section 82 of the Code of Criminal Procedure requires the court to publish written proclamation requiring the person against whom warrant has been issued to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. 10. Thus, it is quite clear from the bare reading of Section 82 of the Code of Criminal Procedure, 30 days time has to be granted for the accused against whom non-bailable warrant of arrest has been issued to put in appearance. If within the said 30 days the accused does not appear, then process under Section 83 can be issued by the court after completing the condition mentioned in the said section. 11.
If within the said 30 days the accused does not appear, then process under Section 83 can be issued by the court after completing the condition mentioned in the said section. 11. From perusal of the order dated 26.3.2015, it is quite clear that the process under Section 82 and 83 has been issued on the very same day which is quite illegal and thus, it is hereby set aside. 12. So far the order dated 17.3.2015 is concerned, it relates to the cancellation of bail on the ground that the accused failed to take any step. As mentioned above, not only on 17.3.2015 but on three other previous consecutive dates i.e. 16.3.2015, 2.3.2015 and 23.2.2015 the accused failed to appear. Since the accused failed to appear before the court on 23.2.2015, 2.3.2015, 16.3.2015 and 17.3.2015, the court had no other alternative than to cancel the bail and issue non-bailable warrant of arrest. I find no error in the order dated 17.3.2015. 13. In view of the order passed, the petitioners are directed to surrender before the court below and pray for bail. The learned trial court will pass an order on the same day the petitioners surrenders. While passing the order, the court below must take into consideration that the petitioners on earlier occasions were regularly appearing before the trial court or was being represented regularly through their Lawyer. Further the court below shall take into consideration that the case is of the year 2000 and from the date of framing of charge, only four witnesses have been examined by the prosecution over a period of 11 years. 14. With this observation, this application is disposed of. 15. Let lower court record be sent to the court concerned immediately. The court below will take all endeavour to conclude the trial on day-to-day basis within a period of three months from the date of receipt of a copy of this order. Application disposed of.