Sanwill @ Sam Srivastava vs The State Of Jharkhand
2024 Latest Caselaw 9141 Jhar

Jharkhand High Court

Sanwill @ Sam Srivastava vs The State Of Jharkhand on 11 September, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                IN THE HIGH COURT OF JHARKHAND, RANCHI
                        W.P. (Cr.) No. 670 of 2024
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Sanwill @ Sam Srivastava, aged about 52 years, S/o Late Ramesh Prasad Srivastava, R/o Sai Kripa Srivastava House, Behind Himgiri Plastic Tank Factory, Neemtand Chutu, Chuttu, P.O - Ormanjhi, P.S. - Sadar, Ranchi, Jharkhand .... Petitioner

-- Versus --

1. The State of Jharkhand

2. Mrs. Alima Minz, aged about 61 years, W/o Sushil John Kujur, R/o Dibdih Bhagat Kocha, Upper Daud Nagar, Road No.2, PO - Hinoo, PS - Doranda, Ranchi - Jharkhand 834002 .... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Dilip Kr. Prasad, Advocate For the State :- Mr. Sachin Kumar, Advocate

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04/11.09.2024 Heard learned counsel appearing for the petitioner

and learned counsel appearing for the respondent State.

2. The prayer in the writ petition is made for setting aside the

order dated 10.07.2024 passed by learned Judicial Commissioner,

Ranchi in Cr. Rev No.254 of 2024 affirming the order dated

05.06.2024 passed in complaint case No.3139 of 2022 by learned

Judicial Magistrate, 1st Class, XXIV, Ranchi cancelling the bail and

issuing non-bailable warrant against the petitioner.

3. Mr. Dilip Kr. Prasad, learned counsel appearing for the

petitioner submits that the complainant had filed a case against the

Director of the company for dishonour of cheque of amount

--1-- W.P. (Cr.) No. 670 of 2024 Rs.8,32,000/- by claiming that the Director of the Company issued

the cheques in discharge of his liabilities as the complainant had

deposited Rs.7,00,000/- in the bank account of the company and

given Rs.1,00,000/- to the accused and the petitioner issued said

cheque and the said cheques were dishonoured. He submits that

the said complaint case was proceeded and the statement under

Section 313 Cr.P.C. was recorded on 06.05.2024. He submits that

the said case was fixed for delivery of judgment on 05.06.2024 and

on that day, the petitioner has filed a petition for adjournment of

ten days, however, the learned Court has treated the petition under

Section 317 of Cr.P.C. and rejected the same and pronounced the

judgment and the petitioner has been convicted to go Rigorous

Imprisonment for one year and compensation of Rs.12 lacs and he

submits that on the same day the bail bond of the petitioner was

cancelled and non-bailable warrant has been directed to be issued

which was challenged by the petitioner before the revisional court in

Cr. Rev No.254 of 2024 and the learned Revisional Court by

judgment dated 10.07.2024 has been pleased to dismiss the

revision petition.

4. In this background, he submits that the application was for

time whereas the said petition was treated as petition under Section

317 of Cr.P.C. By way of referring to Section 353 (6) of Cr.P.C., he

submits that proviso is coming to the help of the petitioner as there

was only one accused in the complaint case who is the petitioner.

--2-- W.P. (Cr.) No. 670 of 2024 He submits that due to absence of the petitioner on the date of

judgment, the prayer under Section 389(3) of Cr.P.C. is not made

out before the Court. He submits in view of that the right of the

petitioner has taken away. On this background, he submits that the

appropriate order may kindly be passed as the petitioner is ready to

appear before the learned Court by way of filing appropriate

petition.

5. Learned counsel appearing for the respondent State submits

that the petitioner was not present and in view of that the learned

Court has rightly passed the order.

6. In view of the above, it is an admitted position that the

petitioner was convicted in the said complaint case for one year and

compensation was directed to paid Rs.12 lacs and that case was

arising out of dishonour of the cheque and in light of sub-section 7

of Section 353 of Cr.P.C., it is crystal clear that no judgment

delivered by any criminal courts shall be deemed to be invalid by

reason only on the absence of any party.

7. So far the cancellation of bail is concerned due to non-

presence of the petitioner, the Court finds that the learned trial

court committed no error in issuing of non-bailable warrant of arrest

having notice that the petitioner was not present at the time of

pronouncement of judgment and order of conviction and sentence.

8. In light of Section 418(2) of the Cr.P.C. under sub-section 2

of Section 418 of Cr.P.C., when the accused sentence to

--3-- W.P. (Cr.) No. 670 of 2024 imprisonment is not present in the Court, the Court has to issue a

warrant of his arrest and the sentence shall commence on the date

of the judgment. In view of that the learned Court is having two

options that is before pronouncement of the judgment and order of

conviction and sentence, enforced the attendance of the applicant

petitioner/accused in the Court or pronounce the judgment in

absence of accused and issue warrant of arrest for that. The

learned Court thought fit to adopt the latter part of procedure that

is pronounced the judgment and thereafter proceeded to issue a

warrant of arrest under Section 418(2) of Cr.P.C.

9. Reference may be made to the case of Lallan Singh vs.

State of Uttar Pradesh MANU/SC/0782/2014 : (2015) 13

SCC 362 wherein paragraph Nos. 10, 10.1, 10.2 and 10.3 it has

been held as under:-

10. The legal position as to the process that should follow an order of conviction is much too clear to require any special emphasis. We say so because Chapter XXXII of the Code of Criminal Procedure, 1973, prescribes the process and the procedure to be followed for execution of sentence of death and/or other sentences awarded to convicts. We may in particular refer to Sections 417, 418, 472 and 420 CrPC which deal with the power to appoint place of imprisonment of the convict, the execution of sentence of imprisonment and the direction of warrant for execution as also the persons with whom the

--4-- W.P. (Cr.) No. 670 of 2024 same has to be lodged:

10.1. Section 418 of the Code in particular deals with execution of sentence of imprisonment and inter alia empowers and obliges the court passing the sentence to forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is otherwise confined in such jail or other place to forward him to such jail or other place with a warrant. In terms of sub-section (2) of Section 418, where the accused is not present in the court when sentence of imprisonment as is mentioned in sub-section (1) is pronounced, the court is required to issue a warrant for his arrest for the purpose of forwarding him to jail or other place in which he is to be confined and in such cases the sentence shall commence on the date of his arrest. There is thus no gainsaying that upon conviction of an accused and sentence of imprisonment awarded to him, the court concerned is expected to commit him to jail in terms of a warrant that would authorise his confinement for the period he is to undergo such imprisonment. We have no reason to believe that this procedure is not followed invariably in all such cases where the convict is not present before the court concerned and is required to be committed to imprisonment for undergoing the sentence. 10.2. We also believe that the process of issuing warrant to apprehend the convict is followed diligently in keeping with the spirit underlying Section 418 CrPC.

--5-- W.P. (Cr.) No. 670 of 2024 10.3. The difficulty, in our opinion, arises when the warrants so issued by the court concerned remain unexecuted. This happens not only in cases where the accused has been convicted and sentenced by the trial court but also where an appeal or revision preferred against the conviction is eventually dismissed by the High Court. There is no manner of doubt that even in such cases the court is under an obligation after receipt of an intimation about the dismissal of the appeal or revision preferred by the convicts, to follow the procedure under Section 418 CrPC for apprehension of the accused, in case he has not surrendered voluntarily, and to commit him to jail to undergo the sentence awarded to him.

Experience, however, shows that when warrants are forwarded to the police for execution the same remain unexecuted for years as noticed by us in the case at hand where despite the dismissal of the appeal filed by two of the life convicts, held guilty of a double murder, had remained at large for considerably long period.

10. Hon'ble the Supreme Court was considering Section 138 of

the Negotiable Instruments Act in the case of M/s Bhaskar

Industries Ltd. vs. M/s Bhiwani Denim and Apparels Ltd.

and Ors. MANU/SC/0489/2001 : AIR 2001 SC 3625 wherein

paragraph Nos.15 to 19 it has been held as under:-

15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-

--6-- W.P. (Cr.) No. 670 of 2024 State transactions through facilities of the banks, it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely, such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of a summons case. When a Magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the Magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings.

16. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by Magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the "accused appears or is brought before the Magistrate".

The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that: Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader."

17. Thus, in appropriate cases the Magistrate can allow an accused to make even

--7-- W.P. (Cr.) No. 670 of 2024 the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.

18. A question could legitimately be asked -- what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care of such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any

--8-- W.P. (Cr.) No. 670 of 2024 stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.

19. The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.

--9-- W.P. (Cr.) No. 670 of 2024

11. In view of the above well settled provisions of law and

considering that even in many cases after pronouncement of

judgment accused are not being apprehended in spite of the best

efforts. In the case in hand, the petitioner is willing to appear

before the learned Court for appropriate order and if petitioner

would have present before the learned Court on the date of

judgment, there is every chance that he would have been released

on provisional bail seeing the sentence. On that day, the petition

was filed for time, however, treating the same under Section 317 of

Cr.P.C., the judgment was pronounced.

12. As such this Court is of the opinion that the petitioner

deserves one more opportunity to appear before the learned Court

and accordingly he is directed to appear before the learned Court

and on the date he appears before the learned Court, it will be open

to him to file a fresh application under Section 389(3) of Cr.P.C. for

provisional bail to enable him to prefer an appeal before the

Sessions Court against the conviction and sentence, if the petitioner

acts accordingly then the non-bailable warrant need not be

executed.

13. In the result, this application stands disposed of with

following directions:

(i) The petitioner/accused shall appear in person before the learned Court, who has dismissed the judgment along with his Advocate and it will be open for him to file fresh

--10-- W.P. (Cr.) No. 670 of 2024 application under Section 389(3) of Cr.P.C. for provisional bail to enable him to prefer an appeal in the Sessions Court against the conviction and sentence. If any such application is filed by the petitioner/accused by remaining personally present in the Court, then the learned Court shall pass an appropriate order upon the said application in accordance with law on the very same day.

(ii) The petitioner/accused shall appear before the learned Court within a period of ten days from today. If the petitioner fails to appear then the non-bailable warrant shall be executed and the petitioner/accused be arrested and sent to jail for serving the sentence.

(iii) After completing the legal formalities explained here-in-above, it will be open to the petitioner here in to file appeal before the learned Sessions Court against the conviction and sentence and also pray for remaining on bail pending final disposal of the appeal.

14. Consequently, order dated 10.07.2024 passed by learned

Judicial Commissioner, Ranchi in Cr. Rev No.254 of 2024 is hereby

set aside.

15. Pending petition, if any, is also disposed of.

                                     (Sanjay Kumar Dwivedi, J.)
Sangam/
  A.F.R.




                                 --11--                         W.P. (Cr.) No. 670 of 2024