Orissa High Court
Rajendra Kumar Patel vs State Of Odisha on 20 January, 2023
IN THE HIGH COURT OF ORISSA : CUTTACK.
CRLMC No. 571 of 2017
(An Application under Section 482
of the Code of Criminal Procedure, 1973)
Rajendra Kumar Patel ... Petitioner
VERSUS
State of Odisha
and Another Opposite parties
...
Advocates appeared in the case:
For the Petitioner : Mr. Ambika Prasad Ray,
Advocate
For the Opposite Parties : Mr. Sangram Keshari Mishra,
Additional Standing Counsel
CORAM:
JUSTICE MURAHARI SRI RAMAN
JUDGMENT
20.01.2023
MURAHARI SRI RAMAN, J.--
1. Assailing propriety of Order dated 23rd August, 2016 passed
by the learned Sub-Divisional Judicial Magistrate, Bhubaneswar
("SDJM" in short) refusing to allow petition filed under Section
205 of the Code of Criminal Procedure, 1973 (herein after referred
to as "Cr.P.C."), with a prayer to dispense with personal
attendance of the petitioner-accused in 1CC No.1114 of 2015,
wherein the congnizance of offences was taken under Sections
323, 294, 420 and 506 of the Indian Penal Code, 1860, the instant
petition has been filed under Section 482 of the Cr.P.C.
Facts of the case:
2. Fact adumbrated by the petitioner leading to invocation of
provisions of Section 482, Cr.P.C. is that one Amiyabala Mishra
wife of Mahendra Prasad Mishra entered into agreement with the
petitioner, who is described as Managing Partner of M/s. Canaan
Infraventures LLP having registered office at Plot No.N/3-438,
IRC Village, Nayapalli, Bhubaneswar, for sale of land at a
consideration of Rs.1,35,00,000/-. At the time of agreement the
petitioner paid cash of Rs.11,00,000/- and as a consequence
thereof, said Amiyabala Mishra would execute registered sale
deed in favour of Sri Biswaranjan Dey and Sri Priyadarshi Jena.
Further fact as stated by the petitioner reveals that he, in the
capacity of Managing Partner, issued ten numbers of post-dated
cheques in favour of aforesaid Amiyabala Mishra-complainant.
2.1. The allegation of the complainant before the SDJM is that
out of ten numbers of post-dated cheques, the cheque bearing
Nos.007886, dated 05.10.2014 for an amount of Rs.5,00,000/- and
the cheque bearing No.007887, dated 05.10.2014 for an amount of
Rs.10,00,000/-, on being presented before the concerned bank,
were dishonoured on 27.10.2014. Other two cheques bearing
Nos.007888, dated 20.12.2014 and 007889, dated 20.10.2014 for
sums of Rs.5,00,000/- and Rs.10,00,000/- were also dishonoured
on 27.12.2014 on the ground of "funds insufficient". It is the case
of the complainant as stated in the present petition by the
petitioner is that the petitioner being approached by the
complainant for payment of Rs.30,00,000/-, she was driven out
from the office of the petitioner by hurling abuses. Therefore, the
complaint has been filed before the learned SDJM.
2.2. The learned SDJM, on consideration of the material
available on record, took cognizance of the offence under Sections
323, 294, 420 and 506 of the Indian Penal Code on 04.03.2016.
2.3. While the matter stood thus, the petitioner, claiming himself
to be busy businessman and is required to travel out of this State
quite often and has his business mostly in Ahmedabad in the State
of Gujarat, stated in his petition under Section 205, Cr.P.C. that it
would not be convenient for him to attend the Court on each date.
2.4. Considering seriousness of the allegations against the
Managing Partner (petitioner), the learned SDJM required
physical presence of the petitioner-accused essential at the time of
trial and thereby, refused to allow the benefit of dispensing with
personal attendance under Section 205, Cr.P.C.
Contention of the learned counsel for the petitioner:
3. Sri Ambika Prasad Ray, learned Advocate for the petitioner
would submit that the learned SDJM having not weighed the
hardship caused to the petitioner by refusing to dispense with the
personal attendance, the Order dated 23.08.2016 is liable to be set
aside. Sri Ray further submitted that subsequent to such order, the
learned SDJM issued non-bailable warrant of arrest vide Order
dated 06.02.2017 as the petitioner-accused was absent. The
petitioner moved petition under Section 438, Cr.P.C. before this
Court and this Court was pleased to pass following Order on
11.04.2017 in ABLAPL No.4136 of 2017:
"*** Considering the submissions made by the
respective parties, the nature of accusation against the
petitioner and the fact that the offences are triable by
Magistrate and NBW of arrest has been issued against the
petitioner, I am inclined to release the petitioner on
anticipatory bail and accordingly, this Court directs that in
the event of arrest of the petitioner in connection with the
aforesaid case, he shall be released on bail on furnishing
bail bond of Rs.5,000/- (Rupees five thousand) with two
sureties each for the like amount to the satisfaction of the
arresting officer with further conditions that he shall make
himself available for interrogation by the I.O. as and when
required and he shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from
disclosing any facts to the Courts or to the Investigating
Officer.
Violation of any of the above conditions shall entail
cancellation of bail.
The ABLAPL is accordingly disposed of."
3.1. Sri Ambika Prasad Ray, learned counsel for the petitioner
argued that the learned SDJM ought to have allowed the petition
under Section 205, Cr.P.C. in view of principles laid down by the
Hon'ble Supreme Court in the case of Bhaskar Industries Ltd. v.
Bhiwani & Apparels Ltd., (2001) 7 SCC 401 = AIR 2001 SC
3625 which was followed by this Court in the case of Ashok
Kumar Padhy Vrs. Pratima Mohapatro, 2020 (I) OLR 191. He
has submitted that since offences under consideration in Ashok
Kumar Padhy (supra) being Sections 448/323/294/506, I.P.C., are
identical to the offences taken cognizance of in the instant case,
and, therefore, the present petition is liable to be allowed by
quashing the Order dated 23.08.2016.
3.2. Sri Ray further relied on a matter relating to offence under
Section 138 of the Negotiable Instruments Act, 1881, in the case
of Debasis Samantaray Vrs. State of Odisha, 2003 (II) OLR 219
to contend that even if an application under Section 205, Cr.P.C.
is rejected at an earlier stage, such petition can be allowed to be
considered at a subsequent stage by invoking the provisions of
Section 273 and 317 of the Cr.P.C.
3.3. Referring to Puneet Dalmia Vrs. Central Bureau of
Investigation, Hyderabad, (2020) 12 SCC 695 the learned counsel
for the petitioner submitted that said reported case being of the
nature of offences under Section 120B, 420 and 409, I.P.C. read
with Sections 9, 12, 13(2), 13(1)(c) and (s) of the Prevention of
Corruption Act, 1988, the Hon'ble Supreme Court of India
permitted the counsel for the petitioner to appear on behalf of the
accused and dispensed with personal attendance of the petitioner
invoking provisions of Section 205, Cr.P.C.
3.4. The learned counsel for the petitioner, hence, pressed for
exercising power under Section 482, Cr.P.C. to clog abuse of
process of court to secure ends of justice.
Contention of the learned Additional Standing Counsel:
4. Sri Sangram Keshari Mishra, learned Additional Standing
Counsel urged that once the petitioner-accused is given scope to
dispense with personal attendance in consideration of provisions
of Section 205, Cr.P.C., there would be little chance to further
proceeding in the trial. Referring to copy of certified copy of
order-sheet maintained by the Court of JMFC-III, Bhubaneswar,
which is in seizin of the matter at present, learned Additional
Standing Counsel submitted that after bail under Section 438,
Cr.P.C. being granted on 11.04.2017 by this Court, the petitioner-
accused has taken no step before the concerned court. Said order-
sheet would clearly show that on 06.02.2022 and 05.07.2022 no
step was taken either by the petitioner-accused or by his counsel.
This is indicative of the fact that in the event the petition under
Section 205, Cr.P.C. is allowed in favour of the petitioner, it
would be difficult to ensure attendance of the petitioner at any
stage of trial as the petitioner has himself stated in the present
petition as follows:
"4. That as the matter stood such the present
petitioner filed a petition under Section 205, Cr.P.C. for
dispensing with his personal appearance stating therein his
all difficulties as he is a businessman and most of the time
staying and doing business at Ahmedabad ***"
4.1. Amplifying his submission, Sri Mishra submitted that since
the accused stays outside the State of Odisha and doing business
at far off place, and more particularly when record shows his
advocate did not take step(s) on the date fixed before the learned
court concerned, there is no warrant to show any indulgence to the
petitioner.
4.2. Sri Mishra brought to the notice of this Court a Judgment of
the Hon'ble Supreme Court in the case of Vijay Lakhani Vrs.
Jayesh Shah, (2016) 15 SCC 94, and submitted that said Court
allowed prayer for dispensing with personal attendance of the
accused under Section 205, Cr.P.C. with a condition that the
petitioner was required to deposit entire amount which was
subject-matter of complaint. Since the petitioner in the instant case
has not offered to fulfil such a condition, leniency should not be
shown to him.
Consideration of rival contentions and reasons for the decision:
5. At the outset the following provisions may be required to be
taken note of:
"205. Magistrate may dispense with personal attendance of
accused.--
(1) Whenever a Magistrate issues a summons, he may, if
he sees reason so to do, dispense with the personal
attendance of the accused and permit him to appear by his
pleader.
(2) But the Magistrate inquiring into or trying the case
may, in his discretion, at any stage of the proceedings,
direct the personal attendance of the accused, and, if
necessary, enforce such attendance in the manner
hereinbefore provided.
273. Evidence to be taken in presence of accused.--
Except as otherwise expressly provided, all evidence
taken in the course of trial or other proceeding shall be
taken in the presence of the accused, or, when his personal
attendance is dispensed with, in the presence of his pleader.
Explanation.--
In this section, 'accused' includes a person in
relation to whom any prceeding under Chapter VIII has
been commenced under this Code.
317. Provision for inquiries and trial being held in the
absence of accused in certain cases.--
(1) At any stage of an inquiry or trial under this Code, if
the Judge or Magistrate is satisfied, for reasons to be
recorded, that the personal attendance of the accused
before the court is not necessary in the interests of justice,
or that the accused persistently disturbs the proceedings in
court, the Judge or Magistrate may, if the accused is
represented by a pleader, dispense with his attendance and
proceed with such inquiry or trial in his absence, and may,
at any subsequent stage of the proceedings, direct and the
personal attendance of such accused.
(2) If the accused in any such case is not represented by
a pleader, or if the Judge or Magistrate considers his
personal attendance necessary, he may, if he thinks fit and
for reasons to be recorded by him, either adjourn Such
inquiry or trial, or order that the case of' such accused be
taken up or tried separately.
482. Saving of inherent power of High Court.--
Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice."
5.1. An essential feature of criminal jurisprudence is that the
trial of an offence should take place in the presence of the accused
and nothing should take place behind the back of the accused. The
Court is required to take steps to ensure that a fair-trial is given to
him. This principle has been embodied in Section 273 of the
Cr.P.C. which provides, as a general rule, that all evidence taken
in the course of trial shall be taken in presence of the accused.
While such a rule is mainly for the protection of the interest of the
accused, Cr.P.C. has provisions allowing courts the discretion, in
certain circumstances, to exempt an accused from personal
attendance. However, exemption from personal attendance is not
available to an accused as a matter of right; and is subject to the
discretion of the Magistrate.
5.2. The personal attendance of the accused can be dispensed
with either under Section 205 or Section 317 of Cr.P.C. Conjoint
reading of these provisions makes it clear that the court is
empowered to dispense with the personal attendance of the
accused at all stages. While Section 205 gives discretion to the
Magistrate to dispense with personal attendance right from the
stage of commencement of the proceedings; Section 317 covers
the stage after commencement of the inquiry or trial. It is,
therefore, stated that there is no hard and fast rule governing the
field to exercise this power and each case has to be considered
after giving due weight to the attendant circumstances. Ordinarily,
the Court should be generous and liberal in exempting the accused
from personal attendance except in case of serious nature, and
cases of moral turpitude. The Court is required to consider the
nature of accusation and the prejudice, if any, likely to be caused
if personal attendance is made compulsory. Therefore, in trivial
cases, personal attendance of the accused should be exempted as a
rule, if no prejudice was likely to be caused in the fair trial. The
Court may also look into the inconvenience to be caused if the
accused is required to remain absent from his vocation,
profession, trade or occupation by calling him for attendance in
the Court against the prejudice likely to be caused if he does not
appear in the Court. See Gopalram and Others Vrs. State of
Rajasthan and Others, MANU/RH/0781/1994.
5.3. The Hon'ble Madras High Court in the case of Ajay Kumar
Bisnoi Vrs. KEI Industries Ltd., 2015 SCC OnLine Mad 10397
made it clear that in the matter of exempting the accused from
personal appearance in appropriate cases, Criminal Procedure
Code has given ample discretion to the Courts. Section 205(1)
enables the Magistrate to dispense with the personal attendance of
the accused and permit him to appear by his pleader, if he is
satisfied with the reason mentioned by the accused. Ordinarily in a
criminal case, evidence has to be recorded in the presence of the
accused, however, Section 273 Cr.P.C. envisages that in
appropriate cases, the personal appearance of the accused could be
dispensed with and evidence could be recorded in the presence of
the pleader. Likewise, Section 317 Cr.P.C. also empowers the
Judge or Magistrate to be satisfied and for reasons to be recorded,
that the personal attendance of the accused before Court is not
necessary in the interest of justice, the Judge or Magistrate can
dispense with the personal attendance of the accused and proceed
with the enquiry or trial in his absence. When the appearance of
the petitioners/accused has been undertaken by the counsel, the
absence of accused has nothing to do with the progress of the case
and there is no impediment for the Court in proceeding with the
case in the presence of the counsel of the petitioner-accused. It is
well settled that the process of the court should not be used for
harassment of litigants and the insistence on the appearance of the
parties before the Court need be only if it becomes absolutely
necessary for some purpose. In fact, the very existence of the
Court is only for dispensation of justice. The reason cited by the
petitioners in the said case for their inability to make appearance
before the Court is that busy businessmen and frequently travel
abroad and also to look after day to day affairs of their company
and to permit their counsel to appear and represent on their behalf
on all hearing dates. The said reason cited by the petitioners has
been accepted as reasonable by the Madras High Court and hence,
their personal appearance is directed to be dispensed with by
permitting their counsel to appear and represent on their behalf. It
was noted that the absence of the petitioners will not hamper the
progress of the case proceedings.
5.4. Thus effectively, an accused is entitled to seek exemption
from personal appearance right from the initial stages including
the first appearance, after satisfying the Court with proper reasons.
Further, the accused need not appear personally to seek
exemption. Section 205(1) states that even at the stage of issuing
summons, the Magistrate may, if he sees reasons so to do,
dispense with the personal attendance of the accused and permit
him to appear through his pleader. The purport of dispense with
personal attendance under Section 205, Cr.P.C. is that the court is
supposed to adopt a generous and liberal approach and thereby the
proceedings can be taken in the case against the accused
expeditiously and the hearing is not adjourned only for the
absence of the accused.
5.5. Significant to note that the Hon'ble Kerala High Court has
illustratively placed certain categories of accused persons for
consideration under Section 205, Cr.P.C. in the case of Helen
Rubber Industries Vrs. State of Kerala, 1972 SCC OnLine Ker
124. It is stated in said case that in all trivial and technical cases,
where the accused are ladies, old and sickly persons, workers in
factories, daily wage earners, other labourers and busy business
people or industrialists, the courts should invariably exercise
discretion liberally to exempt such persons from personal
attendance.
5.6. In R.P. Gupta Vrs. State of Madhya Pradesh, 2006 SCC
OnLine MP 591 the legal position with regard to dispense with
personal attendance has been summarized. It was observed that
the courts should be generous and liberal in granting exemption to
accused persons particularly in cases which are of trivial or
technical nature. Personal appearance is the rule in criminal cases
of a serious nature, involving moral turpitude. If the accused
persons are duly represented by their counsel, their personal
attendance may not be insisted by the Court.
5.7. In a case where the accused was serving abroad, the
Hon'ble Court considering the plight of the accused in the case of
Benny P.R. Vrs. State of Kerala 2017 SCC OnLine Ker 38293,
directed as follows:
"4. Exemption can be granted to the petitioner
from personal appearance in this case and his presence
shall be insisted only on the posting dates, on which, his
personal presence is actually required. The court below
shall, in advance, direct such personal presence of the
accused at least one month before, so that the petitioner
shall appear before the court below. Matters being so,
Annexure-A4 order is liable to be quashed. The request of
the petitioner is granted."
5.8. In Bhaskar Industries Ltd. (supra) at paragraphs 14, 15,
17, 18 and 19 it has been observed and held as under:
"14. The normal rule is that the evidence shall be
taken in the presence of the accused. However, even in the
absence of the accused such evidence can be taken but then
his counsel must be present in the court, provided he has
been granted exemption from attending the court. The
concern of the criminal court should primarily be the
administration of criminal justice. For that purpose the
proceedings of the court in the case should register
progress. Presence of the accused in the court is not for
marking his attendance just for the sake of seeing him in the
court. It is to enable the court to proceed with the trial. If
the progress of the trial can be achieved even in the
absence of the accused the court can certainly take into
account the magnitude of the sufferings which a particular
accused person may have to bear with in order to make
himself present in the court in that particular case.
15. These are days when prosecutions for the
offence under Section 138 are galloping up in criminal
courts. Due to the increase of inter-State transactions
through facilities of the banks, it is not uncommon that
when prosecutions are instituted in one State the accused
might belong to a different State, sometimes a far distant
State. Not very rarely, such accused would be ladies also.
For prosecution under Section 138 of the NI Act the trial
should be that of a summons case. When a Magistrate feels
that insistence of personal attendance of the accused in a
summons case, in a particular situation, would inflict
enormous hardship and cost to a particular accused, it is
open to the Magistrate to consider how he can relieve such
an accused of the great hardships, without causing
prejudice to the prosecution proceedings.
17. Thus, in appropriate cases the Magistrate can
allow an accused to make even the first appearance through
a counsel. The Magistrate is empowered to record the plea
of the accused even when his counsel makes such plea on
behalf of the accused in a case where the personal
appearance of the accused is dispensed with. Section 317 of
the Code has to be viewed in the above perspective as it
empowers the court to dispense with the personal
attendance of the accused (provided he is represented by a
counsel in that case) even for proceeding with the further
steps in the case. However, one precaution which the court
should take in such a situation is that the said benefit need
be granted only to an accused who gives an undertaking to
the satisfaction of the court that he would not dispute his
identity as the particular accused in the case, and that a
counsel on his behalf would be present in court and that he
has no objection in taking evidence in his absence. This
precaution is necessary for the further progress of the
proceedings including examination of the witnesses.
18. A question could legitimately be asked-- what
might happen if the counsel engaged by the accused (whose
personal appearance is dispensed with) does not appear or
that the counsel does not cooperate in proceeding with the
case? We may point out that the legislature has taken care
of such eventualities. Section 205(2) says that the
Magistrate can in his discretion direct the personal
attendance of the accused at any stage of the proceedings.
The last limb of Section 317(1) confers a discretion on the
Magistrate to direct the personal attendance of the accused
at any subsequent stage of the proceedings. He can even
resort to other steps for enforcing such attendance.
19. The position, therefore, boils down to this: it is
within the powers of a Magistrate and in his judicial
discretion to dispense with the personal appearance of an
accused either throughout or at any particular stage of such
proceedings in a summons case, if the Magistrate finds that
insistence of his personal presence would itself inflict
enormous suffering or tribulations on him, and the
comparative advantage would be less. Such discretion need
be exercised only in rare instances where due to the far
distance at which the accused resides or carries on business
or on account of any physical or other good reasons the
Magistrate feels that dispensing with the personal
attendance of the accused would only be in the interests of
justice. However, the Magistrate who grants such benefit to
the accused must take the precautions enumerated above,
as a matter of course. We may reiterate that when an
accused makes an application to a Magistrate through his
duly authorised counsel praying for affording the benefit of
his personal presence being dispensed with the Magistrate
can consider all aspects and pass appropriate orders
thereon before proceeding further."
5.9. The Hon'ble Supreme Court in the case of Puneet Dalmia
(supra) while allowing the accused to be represented by his
counsel, dispensed with the personal attendance of the accused
with certain conditions. The following is the observation of the
Hon'ble Supreme Court in the said reported case:
"8. In view of the above and for the reasons stated
above and considering the facts and circumstances of the
case, the present appeal is allowed. The impugned judgment
[Puneeth Dalmia Vrs. State, 2018 SCC OnLine Hyd 1903]
and order passed by the High Court as well as that of the
learned trial court rejecting the application submitted by
the appellant under Section 205 Cr.P.C. are hereby
quashed and set aside and consequently the application
submitted by the appellant to dispense with his appearance
before the learned trial court on all dates of adjournments
and permitting his counsel Shri Bharadwaj Reddy to appear
on his behalf is hereby allowed on the following conditions:
8.1. That the appellant shall give an undertaking to
the learned trial court that he would not dispute his identity
in the case and that Shri Bharadwaj Reddy, Advocate who
is permitted to represent the appellant, would appear before
the learned trial court on his behalf on each and every date
of hearing and that he shall not object recording of the
evidence in his absence and that no adjournment shall be
asked for on behalf of the appellant and/or his Advocate
Shri Bharadwaj Reddy.
8.2. That the appellant shall appear before the
learned trial court for the purpose of framing of the charges
and also on other hearing dates whenever the learned trial
court insists for his appearance.
8.3. If there is any failure on the part of the
Advocate Shri Bharadwaj Reddy, who is to represent the
appellant, either to appear before the learned trial court on
each adjournment and/or any adjournment is sought on
behalf of the appellant and/or if the learned trial court is of
the opinion that the appellant and/or his advocate is trying
to delay the trial, in that case, it would be open for the
learned trial court to exercise its powers under Section
205(2) Cr.P.C. and direct the appearance of the appellant
on each and every date of adjournment."
5.10. Hon'ble Delhi High Court in Chandramauli Prasad Vrs.
State of Delhi, 2008 SCC OnLine Del 759 = ILR (2009) II Delhi
48 examined Section 205 Cr.P.C. in the light of the decision of the
Supreme Court in Bhaskar Industries Limited (supra) and held
that provisions requiring the presence of the accused which
mandate that the trial be held in his presence are enacted for the
benefit of the accused. If the accused person himself does not wish
to avail of the right of personal appearance on every date; if he
reposes the fullest confidence in the court and in his advocate, and
is confident that justice will be meted out to him even in his
absence, then, provided his absence does not prejudice him in any
way or hinder the progress of the trial, it is not necessary for the
trial court to insist on his presence.
5.11. Noteworthy to place here the view expressed by our own
High Court in the case of Rusi Biswal Vrs. Nakhyatra Malini
Debi, AIR 1954 Ori 65 that it is not obligatory on the Magistrate
to require the personal attendance of the accused, who has been
exempted under Section 205, at any stage; and if the Magistrate is
satisfied that the examination of the Mukhtar on behalf of the
accused is sufficient, the non-examination of the accused
personally could not render the trial illegal.
5.12. In Mathew Vrs. State of Kerala, 1985 SCC OnLine Ker
253, the power of the Magistrate to grant an exemption for the
first appearance in a prosecution for the offence under Section 420
of IPC was considered by the Kerala High Court. In the said case,
the accused was in Switzerland, and a non-bailable warrant was
issued against him and his passport was also impounded, making
his return impossible. While considering the application for
exemption under Section 205 of Cr.P.C., it was observed as
follows:
"The very existence of the courts is for dispensation
of justice. The process of courts should not be used for
harassment of litigants. The insistence on the appearance of
parties before court need be only if it becomes absolutely
necessary for some purpose. Courts are entitled to compel
the appearance of the accused. But such insistence should
not be for the mere pleasure of the accused being seen in
the dock. Sometimes, his presence may be absolutely
essential, say for instance for questioning him or for himself
being identified by witnesses. Insistence on his appearance
in such cases may be alright. To insist on his appearance on
a day when his appearance has nothing to do with the
progress of the case will only result in unnecessary
harassment, especially when he has some inconvenience
and his counsel is prepared to represent him. In this case
that is what actually happened. The petitioner who is the
accused before the Magistrate is already in Switzerland.
Even if he wanted he was not in a position to come over to
India and appear before the Magistrate because on the
requisition of the Magistrate himself his passport was
impounded by the concerned authorities. The Magistrate
ought to have realized the fact that under such
circumstances appearance of the accused before him was
rather an impossibility. One could only enjoy sadistic
pleasure by insisting or an unnecessary impossibility and
penalizing a person for not complying with such a
condition."
5.13. In Raju T.P. Vrs. State of Kerala, 2009 (3) KHC 14, which
was a case where the accused was working in Pune, it was held by
the Kerala High Court that the said power could be exercised
subject to the discretion of the court. It was further observed that
discretion is to be exercised considering not only the convenience
of the prosecution but also the difficulties expressed by the
accused. It was further observed that the said power is available in
warrant cases as well.
5.14. This Court has taken consistent view regarding the scope of
Section 205 of the Code of Criminal Procedure which is to the
following effect vide Kamaljeet Singh Ahluwalia Vrs. State of
Orissa, 1998 CriLJ 2191 = 85 (1998) CLT 372:
"i) personal appearance of the accused in a
criminal trial is the normal rule and exempting from
personal appearance is an exception which can be resorted
to in suitable cases by due exercise of judicial discretion;
ii) when the alleged offence(s) involves moral
turpitude, relates to grievous offences or prescribes
considerable length of substantive sentences, the Court
exercising the discretion shall take the total fact and
circumstances into consideration and through a speaking
and reasonable order exercise the discretion judiciously;
iii) no hard and fast rule or a strait-jacket
'formula can be prescribed as to where exemption shall be
granted and when it is to be refused. It all depends upon the
facts and attendant circumstances and the wisdom of the
Court;
iv) when there is no prospect of quick disposal of
the case, no question involves identity of the accused,
direction for personal appearance may cause harassment
as in the case of Paradanasini ladies, old, ailing or infirm
persons or Government servants or business man, Court
should consider their case keeping in view to the totality of
all circumstances; and
v) a liberal construction of the provisions of law
be made unless the converse is necessary in the interest of
justice."
5.15. In Tilotama Vrs. Ranjitarani, 1992 (I) OLR 437, it has
been held that the Magistrate while exercising his judicial
discretion under Section 205, Cr.P.C. should not take too technical
approach and reject the prayer for dispensing with personal
attendance merely because the plea taken by the accused in the
petition is not satisfactorily established. The Magistrate should
concentrate more on the question whether personal attendance of
the accused is necessary for the purpose of the case. It is further
held that in case of Pardanashin women, Courts have consistently
taken the view that although there is no exception in law merely
because the accused is a Pardanashin woman, discretion must be
reasonably exercised by consideration of social status and custom
and also the nature of the offence; ordinarily exemption should be
granted unless a strong prima facie case is made out against it.
The discretion should be liberally exercised in view of general
feeling which exists against public appearance of women and the
fact that procedural law is frequently abused to gratify personal
malice.
5.16. In the case of Benjamin Roul Vrs. Sajal Das, 2017 SCC
OnLine Ori 303, in the context of congnizance of offence under
Section 406 of the Indian Penal Code, this Court setting aside the
rejection of the application under Section 205 of the Cr.P.C.
observed as follows:
"9. The learned Magistrate has neither taken the
social status of the petitioner, his age nor the necessity of
personal attendance of the petitioner. Apart from the fact
that the offence is triable by Magistrate, considering the
nature of accusation in the case and the age of the
petitioner, I am of the view that the learned Magistrate has
not exercised the judicial discretion properly and he should
not have mechanically rejected the application under
Section 205 Cr.P.C. filed by the petitioner."
5.17. When legal position is analysed vis-à-vis scope of Section
205, Cr.P.C., it is culled out as follows:
i. The petition under Section 205, Cr.P.C. must receive
liberal consideration;
ii. The petitioner would not dispute the identity as
particular accused in the case;
iii. A counsel on his behalf will be present on all the
dates of posting;
iv. The accused has no objection in taking evidence in
his absence;
v. The accused would make himself available on any
date when his presence is needed in the case;
vi. Provisions of Cr.P.C. do not restrict a Magistrate
from fixing up conditions while granting an application for
dispensing with personal attendance;
vii. In certain cases, the courts have insisted on deposit of
the amount which is subject-matter of the complaint in
order to grant relief of personal attendance under Section
205, Cr.P.C;
viii. The process of the Courts should not be used for
harassment of litigants and the appearance of the parties
before the Court must be insisted upon only if it becomes
absolutely necessary for some purpose;
ix. The purpose of the criminal court should be
administration of justice and progress of the case; and
insistence upon appearance of the accused in all cases ought
to be avoided.
x. Exception has been discussed in Cardinal Mar
George Alencherry Vrs. Joshi Varghese and Others, 2022
SCC OnLine Ker 5737 as follows:
"25. Now, coming to the facts of this case, the
offences alleged against the petitioner include those
under Sections 409, 420 and 467 of the Penal Code,
1860, which are punishable with imprisonment for
seven years or more. In some of the cases, the
offences alleged against the petitioner are under
Sections 406 and 423, read with 120B of IPC. Even
though the punishment for the said offences is
imprisonment for a term lesser than seven years,
those offences come under Chapter XVII of IPC, and
hence for that reason, that would come under Sub-
Section (3) of Section 437 of the Cr.P.C. Therefore,
the rigour of the said provision applies to all the
cases of the petitioner. Unless there are exceptional
grounds, the exemption from personal appearance
for the first appearance cannot be granted. As
mentioned above, in the Bhaskar Industries case
(supra), the reasons mentioned are due to the far
distance at which the accused resides or carries on
business or on account of physical or other goods
reasons."
Conclusion:
6. Applying the enunciation of law as discussed in the
foregoing paragraphs to the present fact-situation, it is apparent
that the Order dated 23.08.2016 of the SDJM refusing to dispense
with personal attendance in consideration of provisions contained
in Section 205 of the Code of Criminal Procedure cannot
withstand. The ground on which the learned Magistrate rejected
the petition under Section 205, Cr.P.C. is that "although accused
No.2 is a busy in day to day his business work as per his
submission in his petition, it would not be difficult on his part to
appear before the Court as he is attending day to day business
work". From the copy of certified copy of note-sheet maintained
in the case record it could be ascertained that both the complainant
and the accused remained absent on certain dates. Perusal of said
document also indicates that on very many occasions, viz.,
03.12.2020, 21.09.2021, 04.01.2022 and 11.02.2022 the Court
could not proceed with the matter on account of accommodation
sought for by the Bar. Thus, it is safe to say that the default cannot
be attributed to the accused alone in the present facts and
circumstances. The matter did not proceed but for other attending
circumstances.
6.1. It may also be noteworthy to refer to the following
observation of the Madras High Court in Ajay Kumar Bisnoi Vrs.
KEI Industries Ltd., 2015 SCC OnLine Mad 10397, where the
counsel abstained from appearing before the court for his client:
"15. However, this Court is much concerned if the
counsel who is permitted to represent the petitioners-
accused is absent on the ground of boycott. In such
circumstances, the Court below is at liberty to proceed in
accordance with law. Persons belonging to the legal
profession are concededly the elite of the society. They have
always been in the vanguard of progress and development
of not only law but the polity as a whole. Citizenry looks at
them with hope and expectations for traversing on the new
paths and virgin fields to be marched on by the society. The
profession by and large, till date has undoubtedly
performed its duties and obligations and has never
hesitated to shoulder its responsibilities in larger interests
of mankind. The lawyers, who have been acknowledged as
being sober, task-oriented, professionally-responsible
stratum of the population, are further obliged to utilise their
skills for socio-political modernisation of the country. The
lawyers are a force for the perseverance and strengthening
of constitutional government as they are guardians of the
modern legal system. *** It is well known that several
clients are paying through their nose by borrowing heavily
to their advocates and it is a matter of life and death for
them. Advocates who are boycotting the Courts for one
cause of so, should not ignore the fact that there have been
several causes before the Courts pending for disposal and
their act of boycotting would lead to a travesty of justice
and destroy the basic democracy, which would tantamount
to failure of administration of justice. Failure of a lawyer to
attend to his case in court would not only be breach of
contract and breach of trust, but also professional
misconduct. ***"
6.2. It is transpired from reading of impugned Order dated
23.08.2016 that while rejecting, the learned Magistrate had not
taken note of the principles for consideration of the petition to
dispense with personal attendance under Section 205, Cr.P.C. as
laid down by different Courts. Thus, the reasons ascribed in the
impugned order being not germane, the Order dated 23rd August,
2016 is hereby set aside.
6.3. Apposite here to refer to the view expressed by this Court in
Debasis Samantaray Vrs. State of Odisha, 2003 (II) OLR 219. It
has been observed in the said case as follows:
"7. A perusal of the impugned order dated
13.12.2002 reveals that the SDJM was labouring under the
erroneous impression that before considering the
application under Section 205, Cr.P.C., personal
appearance of the accused in court is very much necessary.
This point has been clearly answered by this Court in
Somanath Misra Vrs. State, (1990) 3 OCR 577, relying on
several, decisions and it has been held that it is not
mandatory for the accused to personally appear in Court
before filing the application under Section 205(1), Cr.P.C.
The said view was later on reiterated in the case of Kaveri
alias Benga alias Sukanti Raikarai Vrs. State, (1994) 7
OCR 645 = 78 (1994) CLT 881. In the said decision, the
application for dispensing with personal attendance of the
accused in Court under Section 205, Cr.P.C. was
considered by High Court in spite of the fact that the
accused had been shown as absconder in the charge sheet
and N. B. W. had been issued. The question as to under
which circumstances personal attendance of the accused
can be dispensed with had been considered by this Court in
the decisions cited supra as well as in Ramesh Ch. Lath
Vrs. State, (1992) 5 OCR 97 = 1992 Cri LJ 2263, Bikram
Vrs. State, (1994) 7 OCR 721, Radhanath Vrs. Babulal 62
(1986) CLT 445, and last but not the least, Surojit Vrs.
Sanatan, (1999) 17 OCR 473. The ratio of the aforesaid
decisions is that the power under Section 205(1), Cr.P.C.
can be exercised by a Magistrate not only at the stage of
issuance of summons to the accused, but also at subsequent
stage even after issuance of N.B.W. Law is no more res
integra that even if an application under Section 205,
Cr.P.C. is rejected at an earlier stage, such petition can be
allowed at a subsequent stage by invoking the provisions of
Sections 273 and 317, Cr.P.C. Thus, it can be safely
concluded that an application under Section 205, Cr.P.C. is
maintainable even though the accused has not appeared
personally and the Magistrate should not hesitate to extend
the discretion only on that ground.
8. The view expressed by me also gets fortified by
a decision of this Court in Durowellds Pvt. Ltd. Vrs.
TISCO, 94 (2002) CLT 726. In the said decision it has been
reiterated that if the Magistrate finds that insistence on
personal attendance of the accused in the case would cause
serious difficulty and inconvenience and the comparative
advantage would not overweigh non-appearance, he should
allow a petition under Section 205, Cr.P.C. The offence
alleged in this case is under Section 138, N.I. Act, the
cheque issued by the petitioner in favour of opposite party
No.2 having been dishonoured or bounced by the Bank. The
case, as it appears, mostly depends on documentary
evidence. As such, appearance of the accused petitioner on
each date to which the case stands posted need not be
insisted upon by the Magistrate. But then if, according to
the Magistrate, during the trial presence of the accused
becomes necessary, he is loathed with power under sub-
section (2) of Section 205, Cr.P.C. to direct his attendance
in Court. In other words, for effectual trial, if the presence
of the accused alleged to have committed the offence under
Section 138, N.I. Act becomes necessary, it will be open to
the Court below to insist on his personal attendance in
Court."
6.4. In Manoj Narain Agrawal Vrs. Shashi Agrawal & Ors.,
(2009) 6 SCC 385, while observing that the High Court cannot lay
down directions for the exercise of discretion by the Magistrate
under Section 205 of the Code, had echoed the following views:
"Similarly, the High Court should not have, for all
intent and purport, issued the direction for grant of
exemption from personal appearance. Such a matter
undoubtedly shall be left for the consideration before the
learned Magistrate. We are sure that the Magistrate would
exercise his jurisdiction in a fair and judicious manner."
6.5. It is equally trite that the inherent powers of the High Court
under Section 482 of the Cr.P.C. have to be exercised sparingly
with circumspection, and in rare cases to correct patent illegalities
or to prevent miscarriage of justice. In Madhu Limaye Vrs. The
State of Maharashtra, (1977) 4 SCC 551, the Hon'ble Supreme
Court of India had observed that:
"*** the following principles may be noticed in
relation to the exercise of the inherent power of the High
Court:
(1) That the power is not to be resorted to if there
is a specific provision in the Code for the redress of
the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to
prevent abuse of process of any Court or otherwise to
secure the ends of justice;
(3) That it should not be exercised as against the
express bar of law engrafted in any other provision of
the Code."
6.6. In the above respect reference may also be had to TGN
Kumar Vrs. State of Kerala, (2011) 2 SCC 772.
7. In the result, for the reasons mentioned supra and in the
light of the above discussions, this Court is of the considered view
that the Order dated 23rd August, 2016 passed by the learned
SDJM, Bhubaneswar rejecting the petition of the petitioner-
accused under Section 205 of the Code of Criminal Procedure,
1973 cannot be countenanced and this Court is inclined to set
aside the said order.
7.1. While setting aside the said Order dated 23.08.2016, it is
requested that the learned Magistrate is required to consider the
application of the petitioner under Section 205 of the Code of
Criminal Procedure afresh and take a decision whether the
petitioner-accused can be dispensed with personal attendance
keeping in view the discussions made above and guidelines
contained in different Judgments referred to supra.
7.2. Needless to say that the learned Magistrate may also impose
such conditions as may be deemed fit and proper in the instant
case. It is clarified herewith that in the event of personal
attendance is dispensed with on fresh consideration by the learned
Magistrate on imposition of condition(s), if any, the counsel for
the petitioner-accused shall be present in Court throughout the
proceeding and the petitioner shall have no objection if evidence
is taken in his absence. It is also made clear that the petitioner-
accused shall attend the court personally as and when he is
required to do so by the court concerned.
7.3. While it is hoped that the petitioner-accused will cooperate
in the trial, considering that the matter relates to 2014-15, the
learned Magistrate shall make an endeavour to conclude the trial
of 1CC No.1114 of 2015 (now stated to be pending before the
JMFC-III, Bhubaneswar) as expeditiously as possible.
7.4. Accordingly, the Criminal Miscellaneous Case is disposed
of with the aforesaid terms and observations.
(Murahari Sri Raman)
Judge
Laxmikant
