Dr. Sushil Kumar Mohapatra vs State Of Odisha
2023 Latest Caselaw 11985 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                              CRLMC No.4434 of 2023

            Dr. Sushil Kumar Mohapatra            ....             Petitioner
                                           Mr. Pravash Chandra Jena, Advocate
                                       -versus-
            State of Odisha                       ....        Opposite Party
                                                  Mr. Shashanka Patra, A.S.C.

                      CORAM:
                      JUSTICE CHITTARANJAN DASH
                                   ORDER

Order No. 05.10.2023

01. 1. By means of this application the Petitioner seeks indulgence of this Court, praying to set aside the impugned order dated 12.09.2023 passed by the learned S.D.J.M., Deogarh in I.C.C. No.7 of 2023 under Annexure-4, wherein the learned Court declined to allow the petition filed by the Petitioner U/s.205, Cr.P.C. praying for dispensing with his personal appearance before the court and to allow him to be represented by his lawyer.

2. Perusal of the case record reveals that pursuant to the protest petition, the court having conducted enquiry u/s.202, Cr.P.C. found prima facie material and took cognizance of the offence under Sections 341/294/506, I.P.C. against the Petitioner and issued process for his appearance. The Petitioner having represented by his Advocate moved a petition under Section 205, Cr.P.C. However, he did not press the petition filed

initially and moved a petition subsequently afresh. Learned Court vide order dated 12.09.2023 declined the prayer of the petitioner and directed the petitioner to appear on 18.09.2023.

3. It is submitted by the learned counsel that the Petitioner is a Doctor by profession and is aged about 73 years. According to the learned counsel, having regard to the nature of the offence alleged against the Petitioner being not grave in nature and the Petitioner's identity being not in dispute, the personal appearance of the accused-petitioner could very well be dispensed with by allowing him to be represented through his Advocate and that the petitioner would undertake to appear as and when so required by the Court for the trial or disposal of the case.

4. Section 205 of the code stipulates as follows:

"Magistrate may dispense with personal attendance of accused:- (1) whenever a Magistrate issues 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 proceeding, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided"

5. The Apex Court in Puneet Dalmia vs Central Bureau Of Investigation MANU/SC/1747/2019 held as follows:

"In the case of Bhaskar Industries Ltd. (supra), this Court has observed that if a Court is satisfied that in the interest of justice the personal attendance of an

accused before it need not be insisted on, then the court has the power to dispense with the attendance of the accused. It is further observed by this Court in the aforesaid decision that if a court feels that insisting on the personal attendance of an accused in a peculiar case would be too harsh on account of a variety of reasons, the court can grant relief to such an accused in the matter of facing the prosecution proceedings. It is observed and held by this Court in the aforesaid decision that 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. In Paragraphs 14, 17, 18 and 19, this Court has 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.

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." It is true that in the aforesaid two cases before this Court, the offences alleged were less serious offences than alleged in the present case. However, the principles for grant of exemption as observed by this Court in the case of Bhaskar Industries Ltd. (supra) can be made applicable to the facts of the case on hand also and the appellant can be granted the exemption on certain conditions and on filing an undertaking by the appellant, by which the interest of justice can be protected and grant of exemption may not ultimately affect the conclusion of the trial at the earliest. At this stage, it is required to be noted that nothing is on record that, at any point of time, any effort has been made by the appellant to stall/delay the trial. At this stage, it is required to be noted that in case of other two co- accused in cases arising of the same FIR, the applications for exemption on the very same grounds have been allowed - one by the High Court and another by the learned Trial Court.

7. 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 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 Sri Bharadwaj Reddy to appear on his behalf is herby allowed on the following conditions: (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 Sri Bharadwaj Reddyadvocate 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 Sri Bharadwaj Reddy; (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 Curt insists for his appearance;

(3) If there is any failure on the part of the advocate Sri 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."

6. In the matter of Brajabandhu Mahapatra v. Sri Sasanka Sekhar Senapati (2007) 38 OCR 3, this Court while dealing with a similar matter held as follows:

"No doubt, exemption of the accused from personally attending the Court is an exception and not the rule. From the impugned order, however, it transpires that the learned S.D.J.M. except

mechanically stating that keeping in mind the principles settled in the case of M/s. Bhaskar Industries Ltd. (supra), he is not inclined to allow the petition under Section 205 of the Code. It is needless to state that a Court of law while passing any order is required to assign reasons for the conclusions arrived at."

"Reason is the heart beat of every conclusion, and without the same, it becomes lifeless" as was held by the Supreme Court in the case of Rajkishore Jha v. State of Bihar (2003) 11 SCC

519. The question of assigning reasons also came up before the Supreme Court in the case of State of Orissa v. DhaniRam Luhar, (2004) 5 SCC 568 where the Supreme Court quoting Lord Denning in the case of M.R. in Breen v. Amalgamated Engg. Union, (1971) 1 AII ER 1148, where it was stated that the giving of reasons is one of the fundamentals of good administration and in Alexander Machinery (Dubley) Ltd. v. Crabtree, 1974 ICR 120 (NIRC), where it was observed that failure of giving reasons amounts to denial of justice and reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at, held as follows :-

"...............Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system: reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The "inscrutable face of the sphinx" is

ordinarily incongruous with a judicial or quasi- judicial performance."

7. As discussed above, the impugned order of the learned Magistrate reads as follows -

"U/s. 205 of Cr.P.C. states that 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. The magistrate dispense with the personal attendance of an accused if he thinks it is reasonable to do so at his discretion. Such discretion can be exercises in rare cases under certain circumstances where it seems reasonable. But in this present case nothing such rare and reasonable circumstances are coming forth to allow this petition for exempting the personal attendance of the accused. Further the accused has privilege to take the benefit of provision U/s.273 Cr.P.C. or U/s.317 Cr.P.C. for dispensing his personal attendance during trial and this Court does not satisfactorily feel to dispense the attendance of the accused at this very stage.

Hence, considering the above discussion, absence of any document in support of his contention, accessible distance of the resident of the accused from the court and in absence of any rare factor for considering this application, thus, I am not inclined to allow the present petition for dispensing with the personal attendance of the accused and thereby the petition stands rejected devoid of any merit."

8. The order as above does not disclose any reason on account of which the Petition filed was rejected, which, in the

considered opinion of this Court has not been disposed of in proper application of judicial mind and as such the impugned order dated 12.09.2023 passed in I.C.C. No.7 of 2023 by the learned S.D.J.M., Deogarh cannot be sustained in the eye of law and is accordingly set aside. The Petitioner is permitted to be represented through his Advocate under section 205 Cr.P.C. However, the Petitioner shall file an undertaking to the effect that he shall not be prejudiced if the trial commence in his absence and further that he shall appear as and when so required by the court. The Petitioner shall appear on the day when he is required to answer the charge.

9. The CRLMC is disposed of accordingly.

(Chittaranjan Dash) Judge

S.K. Parida

Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 10-Oct-2023 18:15:03