Full Judgment
1. Dhrub Kumar Das S/O Late Khachi Das R/O Village- Gobardhanpura, P.S.- Lodipur, District- Bhagalpur 2. Chandan Das S/O Dhrub Kumar Das R/O Village- Gobardhanpura, P.S.- Lodipur, District- Bhagalpur 3. Pawan Kumar S/O Dhrub Kumar Das R/O Village- Gobardhanpura, P.S.- Lodipur, District- Bhagalpur Versus The State Of Bihar ---------------------------------”
13. 01.2012 Heard Mr. Subodh Prasad, learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by the notice issued pursuant to the order dated 20.10.2011 passed by the learned Chief Judicial Magistrate, Bhagalpur in Lodipur P.S. Case No. 65 of 2011 registered under Sections 323, 337, 504, 448, 341 and 34 of the Indian Penal Code. It is admitted position that considering the allegation made against the petitioners the learned Chief Judicial Magistrate, Bhagalpur by order dated 13.09.2011 was pleased to grant bail to these petitioners, copy whereof is placed at Annexure-3. It so appears that the injured subsequently succumbed to his injuries and as a consequence whereof an application was filed by the prosecution for inclusion of Section 302 in the set of allegations. Following the application filed by the prosecution the learned Chief Judicial Magistrate by order dated 20.10.2011 directed the office to issue notice to the petitioners as to why their bail be not cancelled in view of incorporation of Section 302 in the set of allegations. Learned counsel for the petitioners with reference to the 2 notice issued pursuant to the order dated 20.10.2011 which is placed at Annexure-4 series submits that although the order does not require the petitioners to be personally present to respond to the notice, the notice issued pursuant thereto contains a stipulation requiring the petitioners to be personally present on the date fixed and respond to the notice of the Court as to why their bail be not cancelled Learned counsel further submits that the stipulation contained in the notice requiring the petitioners to be personally present is a curtailment of the right devolved upon them in the light of the order granting bail dated 13.09.2011. He submits that the Court below considering the nature of allegations set out against the petitioners had been pleased to release the petitioners on bail and the incorporation of the non-bailable offence punishable under Section 302 would not alter the situation. He further submits that the petitioners are prepared to respond to the notice issued by the learned Chief Judicial Magistrate, Bhagalpur in the light of the order dated 20.10.2011 through their counsel. Having heard learned counsel for the parties and having considered the materials on record, this Court is also of the opinion that there is no requirement of the petitioners at this stage to be personally present in response to the notice issued pursuant to the order dated 20.10.2011. More so for the reason that there is no mention in the order that the petitioners have misused privilege of bail. The petitioners thus would be entitled to respond to the notice issued pursuant to the order dated 20.10.2011 through their counsel within a period of one month from the date of receipt of a certified 3 copy of this order and the defence set out by the petitioners in response to the notice may be considered and disposed of in accordance with law. It is made clear that if the petitioners fail to ensure their representation through their counsel within a period of one month from the date of receipt of a certified copy of this order, the Court below would be entitled to take all possible steps and pass appropriate orders in accordance with law. With the aforesaid observation this application is disposed of. Bibhash (Jyoti Saran, J.)