Orissa High Court
Manju Patodia vs Republic Of India (Cbi) on 26 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC Nos. 1065 and 1066 of 2023
Applications under Section 482 of Criminal Procedure
Code, 1973.
---------------
CRLMC No. 1065 of 2023
Manju Patodia .... Petitioner
-versus-
Republic of India (CBI) .... Opp. Party
CRLMC No. 1066 of 2023
Shyam Sundar Patodia .... Petitioner
-versus-
Republic of India (CBI) .... Opp. Party
Advocate(s) appeared in these cases:-
For Petitioner : Mr. U.C. Mishra, A. Mishra,
J.K. Mahapatra,
Advocates
Vs.
For Opp. Party : Mr. Sarthak Nayak,
(Special Counsel, CBI)
[ in CRLMC No. 1065 of 2023]
For Petitioner : Mr. U.C. Mishra, A. Mishra &
J.K. Mahapatra,
Advocates
Vs.
For Opp. Party : Mr. Sarthak Nayak,
(Special Counsel, CBI)
[ in CRLMC No. 1066 of 2023]
Page 1 of 6
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
26th April, 2023
SASHIKANTA MISHRA, J.
Both these applications, filed under Section 482
of Cr.P.C. are directed against the common order passed by
learned Special C.J.M. (CBI), Bhubaneswar in S.P.E. No.
02 of 2020 on 06.12.2022 whereby the petition filed by the
petitioners under Section 205 of Cr.P.C. seeking exemption
from personal attendance were rejected.
2. The facts of the case, relevant only to decide the
present applications are that both the petitioners along
with one Vijay Kumar Patodia are accused persons in the
aforementioned case before the court below for alleged
commission of offences under Sections 120-
B/420/467/468/471 of IPC. The said case was registered
on the basis of source information regarding the
involvement of the accused persons in the alleged offences.
Upon completion of investigation, charge sheet has been
submitted keeping the investigation open under Section
173(8) of Cr.P.C. It is significant to note that both the
petitioners were not arrested during investigation. By order
dated 16.01.2020, the Court below directly issued NBW
against the petitioners. Both the petitioners however
appeared through their lawyer and filed petitions on
20.10.2020 under Section 205 of Cr.P.C. After hearing the
parties, the court below by order dated 06.12.2022 rejected
the petition.
3. Heard Mr. Ashutosh Mishra, learned counsel for
the petitioners and Mr. Sarthak Nayak, learned counsel for
the CBI.
4. Mr. Mishra has argued that the court below
committed manifest illegality in directly issuing NBW
against the petitioners at the first instance despite the fact
that they had not been arrested during investigation.
Moreover, the petitioners have made out a good case for
grant of exemption from personal attendance inasmuch as
the petitioner-Shyam Sundar Patodia is an old man aged
about seventy years and the petitioner-Manju Patodia is
also an old pardanashin lady aged about sixty years. The
court below, instead of considering the grounds on which
the prayer for exemption was made, took into account the
nature of the alleged offences and the fact that NBW/A had
been issued against them, rejected the applications.
5. Mr. Sarthak Nayak, on the other hand, submits
that even though the petitioners were not arrested during
investigation yet investigation is still open and therefore, it
would not be proper to exempt the petitioners from
personal attendance in the Court.
6. Admittedly, the petitioners were not arrested
during investigation. In the case of Aman Preet Singh vs.
Republic of India (CBI) through the Director (Criminal
Appeal No.929 of 2021, decided on 02.09.2021), the Apex
Court held that where the accused has not been arrested
during investigation or not produced in custody is
sufficient to entitle him to be released on bail. Moreover,
the fact that only because as an NBW/A has been issued
cannot be ground to reject the application under Section
205 of Cr.P.C. as held by this Court in Debasis
Samantaray vs. State of Orissa and another, reported
in 2003 (II) OLR 219. It is further seen that the petitioners
had cited specific grounds for exemption from personal
attendance. As already stated, the petitioner-Shyam
Sundar Patodia sought for exemption on the ground of his
old age, i.e. seventy years as also of his personal ailments.
Similarly, Manju Patodia sought for exemption on similar
ground. The court below has not considered such grounds
at all. In the case of Sri Rameshwar Yadav & others vs.
State of Bihar & Anr., reported in (2018) 4 SCC 608, the
Apex Court held that the Magistrate committed error in not
adverting to the grounds taken for praying the exemption
and rejected the application on the reasons which were
unfounded. Thus, it is the duty of the court to consider the
grounds cited by the accused seeking exemption from
personal attendance. This Court finds that the Court below
appears to have been swayed away by the so-called gravity
of the offences allegedly committed by the petitioners
without considering the merits of the grounds raised for
seeking exemption.
7. In view of the foregoing discussion, it is clear
that the reasoning adopted by the court below to reject the
application of the petitioners filed under Section 205 of
Cr.P.C. cannot be legally sustained.
8. In the result, the CRLMCs are allowed. The
impugned order is hereby set aside. The court below is
directed to pass necessary orders allowing the applications
filed by the petitioners under Section 205 of Cr.P.C. on
such terms and conditions as it may deem fit and proper to
impose including the condition that they shall appear
before the Court and submit an undertaking that they will
not dispute their identities and shall not claim prejudice
subsequently for the trial being held in their absence.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 26th April, 2023/ B.C. Tudu, Sr.Steno
