Karan Kumar @ Vikash Kumar @ Karan @ ... vs The State Of Jharkhand
2023 Latest Caselaw 3253 Jhar

                                                             Cr. M.P. No.133 of 2023




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No.133 of 2023
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Karan Kumar @ Vikash Kumar @ Karan @ Vikesh, aged about 29 years, Son of Naresh Sharma, resident of Quarter No.1684, Sector- 1/B, P.O.- H.P.O., Bokaro Steel City, P.S. Bokaro Steel City, District Bokaro, (Jharkhand) ... Petitioner Versus The State of Jharkhand ... Opposite Party

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             For the Petitioner            : Mr. Suraj Verma, Advocate
                                             Mr. Arun Kr. Pandey, Advocate
                                             Mr. Raj Narayan Dwivedi, Advocate
             For the State                 : Mr. Shiv Shankar Kumar, Addl. P.P.
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                                       PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the

jurisdiction of this Court under Section 482 of the Code of Criminal Procedure

with a prayer to quash the order dated 19.11.2019 passed in G.R. Case No.417

of 2014 in connection with B.S. City P.S. Case No.93 of 2014 passed by the

learned Chief Judicial Magistrate, Bokaro whereby and where under the

learned Chief Judicial Magistrate, Bokaro cancelled the bail bond of the

petitioner.

3. The brief facts of the case is that the learned Chief Judicial Magistrate,

Bokaro cancelled the bail bond of the petitioner consequent upon the

petitioner- who is an accused of B.S. City P.S. Case No.93 of 2014,

corresponding to G.R. Case No.417 of 2014, not co-operating with the trial of

the case; as even though four of the witnesses were present in the court, but the

petitioner/accused was not present before the trial court and though a petition

Cr. M.P. No.133 of 2023

for representation was filed on his behalf but no one turned up to press the

petition. The learned Chief Judicial Magistrate, Bokaro rejected the petition

filed with a prayer for representation by his pleader dispensing with the

personal attendance of the petitioner and issued non-bailable warrant of arrest

against the petitioner.

4. Learned counsel for the petitioner submits that the order dated

19.11.2019 passed in G.R. Case No.417 of 2014 in connection with B.S. City P.S.

Case No.93 of 2014 passed by the learned Chief Judicial Magistrate, Bokaro, has

been passed mechanically by the learned Chief Judicial Magistrate, Bokaro and

the said order is harassing and oppressive against the petitioner.

5. Learned counsel for the petitioner relies upon the judgment of a co-

ordinate Bench of this Court in the case of Randhir Kumar Jaiswal vs. The

State of Jharkhand in Cr.M.P. No..452 of 2021 dated 22.06.2021 wherein the co-

ordinate Bench has observed that in the facts of that case when the

representation under Section 317 of Cr.P.C. filed by the counsel for the accused

was rejected and non-bailable warrant of arrest was issued against the

petitioner, the co-ordinate Bench observed that it was incumbent upon the

learned Magistrate to provide another date for appearance and on non-

appearance on the next date, he may would have issued warrant but not doing

so makes the order not sustainable in the eye of law. Hence, it is submitted that

the order dated 19.11.2019 passed in G.R. Case No.417 of 2014 in connection

with B.S. City P.S. Case No.93 of 2014 passed by the learned Chief Judicial

Magistrate, Bokaro whereby and where under the learned Chief Judicial

Magistrate, Bokaro cancelled the bail bond of the petitioner, be quashed and set

aside.

Cr. M.P. No.133 of 2023

6. Learned Addl.P.P. appearing for the State vehemently opposes the

prayer for quashing the order dated 19.11.2019 passed in G.R. Case No.417 of

2014 in connection with B.S. City P.S. Case No.93 of 2014 passed by the learned

Chief Judicial Magistrate, Bokaro and submits that there is no illegality in the

order dated 19.11.2019 passed in G.R. Case No.417 of 2014 in connection with

B.S. City P.S. Case No.93 of 2014 passed by the learned Chief Judicial

Magistrate, Bokaro. It is next submitted that it is a settled principle of law that

the bail granted to the accused do not confer unfettered right to the accused to

not to appear before the court any further rather in the bail bond itself the

petitioner and the sureties have undertaken that the petitioner shall remain

present in court on each date to which the case would be fixed by the court. It is

then submitted that; when the court directs an accused to remain physically

present in the court on a specific day; the accused of the case do not have any

choice not to appear before the trial court. It is further submitted that during a

criminal trial involving non-bailable offences, the accused of the case is kept in

judicial custody and only when the accused person prays and satisfy the court

that he will remain present in the court in future dates to which the case would

be fixed and co-operate with the trial; the court allows the accused to remain on

bail. It is next submitted that therefore, the bail entails with it the liability of the

accused to remain present in court on each of the dates, to which the case is

fixed. Hence, an accused in bail cannot take the liberty not to remain present in

on the date fixed, without the permission of the court and if the accused is

unable to remain present in the court on the date fixed by his own

arrangement, he has the choice of remaining in jail in judicial custody. Then it

will be upon the court to ensure his presence before it as and when desired by

Cr. M.P. No.133 of 2023

the court. It is also submitted that here, in this case, the petitioner wants to have

cake and eat it too. He wants to remain on bail but wants the liberty not to

appear before the court as per his sweet will on the date fixed by the court,

ignoring the direction of the court to remain physically present in court; which

is not permissible in law. It is then submitted that as; in spite of specific

direction of the learned Chief Judicial Magistrate to remain physically present

before it on a specific date, the petitioner still did not obey his order, so,

certainly the petitioner has violated the conditions of the bail bond furnished

by him; in which he undertook to remain present in the court on each date to

which the case is fixed and the violation of the same without any plausible

reason, is unpardonable. More so, when there is specific direction of the court

that the petitioner has to remain present in the court. Hence, it is submitted that

no illegality has been committed by the learned Chief Judicial Magistrate in

cancelling the bail of the petitioner. It is lastly submitted that there is absolutely

no illegality in the order dated 19.11.2019 passed in G.R. Case No.417 of 2014 in

connection with B.S. City P.S. Case No.93 of 2014 passed by the learned Chief

Judicial Magistrate, Bokaro. Hence, it is submitted that this Cr.M.P., being

without any merit, be dismissed.

7. Having heard the rival submissions made at the Bar and after carefully

going through the materials available in the record, it is pertinent to mention

here that when an accused of a criminal case who is released on bail has no

choice for not appearing before the court which grants him bail as per his sweet

will, without the permission of the court, and which the trial is going on. When

an accused is produced before the court in a criminal case involving non-

bailable offences, the accused is first remanded to judicial custody by the court.

Cr. M.P. No.133 of 2023

After such a demand to judicial custody, the accused may prayer for being

released on bail and if the court which is remands the accused to judicial

custody; or any other court empowered under section 437 or 439 of the Code of

Criminal Procedure is satisfied that the accused will remain present in the

court, in which his case is pending, and other attending considerations; on the

prayer of the accused, releases the accused on bail. After an accused is granted

bail as such; by the order of the court, the accused furnishes a bail bond and in

the bail bond the accused undertakes that he will appear before the court on

each of the dates to which the case would be fixed in future. So, ordinarily the

accused in expected to remain present in court on each of the dates to which

the case is fixed. Of course, there is provision inter alia in Section 317 of the

Cr.P.C. where the court can dispense with the personal attendance of the

accused and proceed with such enquiry or trial in absence of the accused, if he

is represented by his pleader. But when the accused who is on bail is directed

specifically to remain present on a particular day by the court then the accused

has to appear in the court because; otherwise if the accused is unable to present

himself before the court by his own personal arrangement; when the date of the

case is fixed; he has the choice to remain in judicial custody and face the trial

and to ensure his production before the trial court will be the responsibility of

the court concerned; by passing appropriate orders and giving necessary

direction to the agencies concerned. Under such circumstances, as in spite of

specific direction of the trial court; the petitioner who was the accused of B. S.

City P.S. Case No.93 of 2014 corresponding to G.R. No.417 of 2014 did not

appear before the learned Chief Judicial Magistrate, Bokaro and unlike the

facts of the case of Randhir Kumar Jaiswal vs. The State of Jharkhand,

Cr. M.P. No.133 of 2023

(supra), though a petition under section 317 of the Code of Criminal Procedure

is filed but no one come forward to move the same and though 4 of the

witnesses of the prosecution were present, yet they could not be examined and

have to be returned, this Court do no find any illegality in the order dated

19.11.2019 passed in G.R. Case No.417 of 2014 in connection with B.S. City P.S.

Case No.93 of 2014 passed by the learned Chief Judicial Magistrate, Bokaro.

8. A criminal trial cannot take place in the absence of the accused person. It

is common knowledge that an accused person of the case, if he knows that his

conviction is imminent because the witnesses will support the case of

prosecution; resorts to all kinds of tactics to delay the trial and to harass the

witnesses by making them to come to the court again and again for recording

of their evidence. There is no express provision in the Code of Criminal

Procedure that if the court rejects the prayer of the accused person of the case,

to dispense with his personal appearance, and permit him to be represented by

pleader; the bail granted to the accused cannot be immediately cancelled. The

legislature, in its wisdom having not, put such embargo on the court, certainly

by way of a legal fiction such an embargo cannot be put upon the court. As if

such an embargo is put on court not to cancel the bail immediately, if the

accused person do not turn up before it, even if the witnesses of the

prosecution are present, the accused person, will deliberately avoid appearing

in the court as and when the prosecution witnesses turn up; to harass them by

coming to court again and again; as an absence of the accused or his pleader in

case the personal appearance of the accused is dispensed with, examination of

the witnesses cannot take place and the trial of the case will be a never-ending

one and will result in paralysing the criminal justice system.

Cr. M.P. No.133 of 2023

9. Accordingly, there being no justifiable reason to allow the prayer to

quash the order dated 19.11.2019 passed in G.R. Case No.417 of 2014 in

connection with B.S. City P.S. Case No.93 of 2014 passed by the learned Chief

Judicial Magistrate, Bokaro whereby and where under the learned Chief

Judicial Magistrate, Bokaro cancelled the bail bond of the petitioner, the said

the prayer is rejected.

10. Accordingly, this Cr.M.P., being without any merit, is dismissed.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th of August, 2023 AFR/ Animesh