SAMIUL HAQUE @ BUDNU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Learned senior counsel appearing for the petitioner submits that though this application has been filed for quashing of the entire criminal prosecution including the order dated 4.10.2005, taking cognizance of the offences alleged and also the order dated 4.12.2010, whereby and whereunder, the Court, having rejected the application filed by the petitioner under Section 317 of the Cr.P.C. cancelled the bail bond and passed an order for issuance of the warrant of arrest (non-bailable) against the petitioner, but the petitioner does not want to press the prayer for quashing of the order dated 4.10.2005, taking cognizance rather would confine his prayer for quashing of the order dated 4.12.2010. Mr. Roy learned senior counsel appearing for the petitioner submits that the petitioner was granted bail on 21.9.2010 and while granting bail he was directed to appear physically on the next date. The next date was fixed 4.12.2010, on which date, an application under Section 317 Cr.P.C. was filed not only on behalf of the petitioner but also on behalf of other accused persons, but the representation filed under Section 317 Cr.P.C. was not accepted in case of the petitioner for the reason that he had earlier been directed to remain physically present in the Court and, thereby, the Court below has committed illegality in passing the order dated 4.12.2010, in view of the decision rendered in a case of "Sandeep Kumar Tekriwal vs. State of Bihar and Others, 2009 1 EastCriC 233 ] and also in a case of "Sura] Chettry vs. State of Jharkhand & Another,2009 2 PunLR 260 (Cr. M.P. No. 1353 of 2012)" wherein it has been held that before cancelling the bail bond, the petitioner should have been directed on an application, filed under Section 317 Cr.P.C., to remain physically present on the next date and only on the next date if the petitioner fails to put his appearance physically, the Court could have right in cancelling the bail bond and for issuance of warrant of arrest (non-bailable). Here in the instance case, 4.12.2010 was the first date when an application under Section 317 Cr.P.C., was filed and, therefore, the Court should have given another date for appearance of the petitioner if he had not appeared on 4.12.2010, but the Court on 4.12.2010 itself cancelled the bail bond and issued warrant of arrest (non-bailable).

(2.) Keeping in view the ratio laid down in the cases referred to above, I do find substance in the submissions advanced on behalf of the petitioner. 4.12.2010, was the first date on which the application under Section 317 Cr.P.C. seems to have been filed on behalf of the petitioner. If the Court wanted appearance of this petitioner, he should have given another opportunity directing him to appear on the next date and if on the next date the petitioner would have absented himself then the Court would have right in cancelling the bail bond but, here in the instant case on the very first day of filing of the application under Section 317 Cr.P.C. the Court has passed the impugned order, which, in the facts and circumstances, does not appear to be legal. Accordingly, the impugned order dated 4.12.2010, is hereby quashed. In the result, this application stands allowed.