SADDA & UMRAO Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an appeal against the order, dated 2.1.89 passed by learned Sessions Judge, Jhalawar in a matter under S. 446 Cr. P. C.

(2.) Addused Sadda was facing trial for offence under S. 395 Penal Code before learned Sessions Judge, Jhalawar. On 24-6-87 accused Sadda did not appear in the court and proceedings under S. 446 Crimial P.C. were ordered to be drawn. Notice was also issued to his surety Umrao Singh, appellant No. 2. Despite the service of the notice no reply has been filed. The surety even did not care to attend the court despite notice and, therefore, the court directed the recovery of entire amount of personal bond of the accused and the surety bond of the surety, challenging the same this appeal has been preferred. The appellants' case is that case was fixed on 3-12-88 on which date next date given was 10-1-89 but the learned Judge took up the file on 2-1-89 and without affording an opportunity to the appellants decided the matter and directed the forfeiture of the amount of the bonds. This order, therefore, is not in accordance with law. I called for the record and perused the order sheets. It is borne out from the order sheets dated 3-12-88, that the next date fixed in the case was 10-1-89. This date was given because learned Sessions Judge was on leave on this date and the next order sheet is dated 2-1-89 which is the impugned order. It appears that accused was arrested and brought before the court in the main case. The learned Sessions Judge also took up the file of proceedings under S. 446 Crimial P.C. and passed the impugned order and there is justification in the argument advanced by the learned counsel for the appellants that the case was not fixed for either filing the reply or arguments on 2-1-89. The order, dated 2-1-89 therefore, having been passed on a date prior to the date fixed in the case, cannot be sustained in law. The order, dated 2-1-89 therefore, is set aside. The parties are directed to appear before learned Sessions Judge, Jhalawar on 29-5-89, and file the reply alongwith affidavit and the documents if they want to file in reply to the notice under S. 446 Crimial P.C. and the learned Sessions Judge should decide the matter afresh.

(3.) It has to be remembered that case has to be decided on the day fixed. If the court wants to advance a date on any reason whatsoever notice must be given to all concerned. Even a party who has been absenting in the past and case is proceeding exparte has a right to join proceedings on the next date fixed. Hence the order-sheet does not disclose that parties had notice that date is advanced. Accused is said to be in jail. He shall be summoned from district jail Jhalawar on 29-5-89.