lowr court MAY issue NBW without even serving notices !! PATNA HC sets aside lower court NBW order !!
notes
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* parties defendants in a criminal case, for offences under Sections 147, 148, 307, 323, 324 and 337 of the Indian Penal Code, P.S. Case No.69 of 1979 ... whaat ?? 1979 ...yes 1979 .....
* case proceeds @ patna, till 2009, parties attending regularly at least default NOT apparent
* suddenly District Judge, Patna by administrative order dated 8.9.2009 transferred the aforesaid case to the Additional Sessions Judge-Incharge, Danapur
* parties have NO notice [no proof of service ? ]
* parties do NOT attend case at Sessions court Danapur
* Again on 7.7.2011 the case was transferred to Additional Sessions Judge V, Danapur
* again * parties do NOT attend case at Additional Sessions court Danapur
* Finally the case called out on 24.1.2012, as accused persons petitioners were not present, their bail bonds were cancelled issued non-bailable warrant and also asked the office to issue show-cause against the bailor !!
* Parties run to PATNA H.C.
* patna HC sets aside sesions judge order !!
* The HC says and we quote ".....Before cancelling bail bond or issuance of process under section 82-83 of the Code of Criminal Procedure including declaring person as permanent absconder, it was the duty of the court to see as to whether proper notice was served or not. From the record it appears that notices were not served on the petitioners while case was at Danapur cannot be said that the cause shown by the petitioners for being absent, cannot be said sustainable in the eye of law....."
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CASE FROM PATNA HC WEB SITE
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.7425 of 2013
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1. Ramanuj Rai, S/O Late Shishupal Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Maner, District- Patna
2. Subhash Rai, S/O Sri Kamleshwar Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Maner, District- Patna
3. Wakil Rai, S/O Late Ramapati Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Manaer, District- Patna
4. Yugal Rai, S/O Late Ramapati Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Maner, District- Patna
5. Ram Janam Rai, S/O Sri Kishun Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Maner, District- Patna
6. Banarsi Rai, S/O Late Ramapati Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Maner, District- Patna
7. Vijay Rai, S/O Late Ramapati Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Maner, District- Patna
8. Krishna Rai, S/O Late Ramapati Rai, R/O Vill.- Sherpur Pokhara, P.S.-
Maner, District- Patna
**** **** Petitioner/s
Versus
1. The State Of Bihar
**** **** Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Kumar Alok,
Mr. Rakesh Kumar, Advocates.
For the State : Mr. Dr. Mayanand Jha, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
01-08-2013
Heard learned counsel for the petitioners and learned counsel for the State. This application has been filed for quashing the orders dated 24.1.2012 and 17.12.2012 passed in S.T. No.185 of 1980/244 of 2011 by the Additional Sessions Judge V, Danapur, Patna. By order dated 24.1.2012 the court below has cancelled bail bonds of all the accused petitioners and issued non-bailable warrant and by order dated 17.12.2012 the petitioners have been declared absconder and permanent warrant has been issued against them and records has been remitted to the record room.
Filtering unnecessary facts, it appears that petitioners are facing the criminal trial as aforesaid arising out of Maner P.S. Case No.69 of 1979 for offences under Sections 147, 148, 307, 323, 324 and 337 of the Indian Penal Code. The same was pending before the F.T.C. V, Patna up to 31.8.2009 where the accused petitioners were attending the case regularly and the next date was fixed on 12.10.2009 but before that date the District Judge, Patna by administrative order dated 8.9.2009 transferred the aforesaid case to the Additional Sessions Judge-Incharge, Danapur. The records was received at Danapur on 2.2.2010 and as per the order sheet the accused petitioner were not present. The order sheet runs on different dates and last date was fixed on 29.3.2010 for appearance.
Again on 7.7.2011 the case was transferred to Additional Sessions Judge V, Danapur. The record of the case was received by the Additional Sessions Judge-V, Danapur on 15.9.2011 and the next date was fixed on 26.9.2011 and thereafter the case was adjourned on different dates. The case was called out on 24.1.2012, as accused persons petitioners were not present, their bail bonds were cancelled issued non-bailable warrant and also asked the office to issue show-cause against the bailor. The case was again fixed for 8.6.2012, on that day process under Sections 82-83 of the Code of Criminal Procedure was issued, ultimately on 17.12.2012 when the petitioners did not appear nor the service report was received, petitioners were declared permanent absconder and as the documents were in dilapidated condition the records were sent to record room. Learned counsel for the petitioners submits that they were attending the case regularly up to 31.8.2009 but before the next date came i.e. 12.8.2009 the case was transferred from Patna to Danapur and thereafter they never received any notice from any court nor ever received any notice for the proceeding under Sections 82 and 83 of the Code of Criminal Procedure and abruptly without awaiting service report from the process server, the court below declared these petitioners as permanent absconder. He further submits, had these petitioners knowledge for transfer of the case from Patna to Danapur or had received any notice from the court concerned, they would have certainly taken proper steps in the matter and the court was not justified without looking to the facts and without awaiting service report from the process server has illegally declared them as permanent absconder.
Learned counsel for the State has submitted that there is no illegality in the impugned orders as it was the duty of the petitioners that when file was not available at the right place they ought to have made an enquiry about the case. Merely because service report was not properly received from the court it cannot be said that order was illegally passed by the court below.
Having considered the rival contentions of learned counsel for the parties it appears that petitioners were attending the court regularly while the case was at Patna and only absented themselves to attend the case at Danapur because they had no knowledge about transfer of the case. Before cancelling bail bond or issuance of process under section 82-83 of the Code of Criminal Procedure including declaring person as permanent absconder, it was the duty of the court to see as to whether proper notice was served or not. From the record it appears that notices were not served on the petitioners while case was at Danapur cannot be said that the cause shown by the petitioners for being absent, cannot be said sustainable in the eye of law.
In this view of the matter the order dated 24.1.2012 and 17.12.2012 passed in S.T. No.185 of 1980/244 of 2011 are set aside. The petitioners are directed to appear before the court below on 16th September, 2013 and accordingly the original bail bonds be restored but if the petitioners remain absent on that day the order dated 24.1.2012 and 17.12.2012 will revive automatically.
With the aforesaid observation and direction this application is disposed of.
Let a copy of this order be sent to the Additional Sessions Judge, V, Danapur in S.T. No.185 of 1980/244 of 2011 through Fax at the cost of the petitioners.
(Shivaji Pandey, J)
Vinay/-
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