Orissa High Court
Dhusa @ Dushasan Nayak & vs Abhiram Mohanty & .... Opp. Parties on 12 November, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4762 of 2023
Dhusa @ Dushasan Nayak & .... Petitioners
another Mr.Arun
Kumar Das 1,
Advocate
-versus-
Abhiram Mohanty & .... Opp. Parties
another Mr.U.R.Jena,
AGA
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 12.11.2024
05.
1.
The notice was issued to the opposite party No.1
on 12.03.2024. Despite service of notice, none appears
for the opposite party No.1.
2. In the present case, the petitioners are aggrieved
by the order dated 16.11.2021 passed by the learned
S.D.J.M., Kamakhyanagar in 1.C.C. Case No.19 of
2018, which has been confirmed by the order dated
07.08.2023 passed by the learned Additional Sessions
Judge, Kamakhyanagar in Crl. Revision No.20 of
2021.
3. At the instance of the opposite party No.2, 1.C.C.
Case No.19 of 2018 has been initiated against the
petitioners. There are three accused persons in the
1.C.C. Case. Out of them, Sridhar Nayak has already
dead. The present petitioners Dhusa Nayak is aged
about 85 years, whereas Purusottam Nayak is aged
about 95 years. They moved the application before the
learned trial Court under Section 205 of the Cr. P.C.
for exemption from their personal appearance, which
has been turned down by the order dated 16.08.2021
passed by the learned S.D.J.M., Kamakhyanagar.
Against the said order, Criminal Revision was
preferred before the learned Additional Sessions
Judge, Kamakhyanagar in Criminal Revision No.20 of
2021. The Revisional Court vide order dated
07.08.2023, has also rejected the application, inter
alia, stating as under:
"That, as per the decision of Kamaljeet Singh
Ahluwalia Vrs. State of Odisha reported in 1998
Vol. 85 CLT-372 exemption of an accused, from his
personal appearance, can be resorted in suitable
cases, where the accused is, paradanashini, lady, old
ailing person, Govt. servant or busy persons.
The only criteria meet by the present accused as
per their claim is that, they are old persons and
unable to attend the court on each date of
adjournment during trial.
Learned trial Court, lay it's Logic again, in the
light of Judgment in the case of T.G.N. Kumar Vrs.
State of Kerala, wherein, the Hon'ble Apex Court
held that, "while considering an application U/s. 205
of Cr. P.C., the magistrate has to bear in mind, the
nature of offence as well as the conduct of the person
summoned" and based her opinion in the following
lines that, if the accused could commit any act of
criminal nature at their old age, then, they are
sufficiently fit and fine to appear in the Court on each
date of adjournment during trial.
The learned Magistrate, took into view the
nature and gravity of the offence and conduct of the
accused and concluded her finding, showing the path
that, the accused can take liberty U/s. 317 of Cr. P.C.
during the trial, and rejected the petition U/s. 205 of
Cr. P.C. of the accused.
Accordingly, this court found that, the order
passed by learned trial court is in conformity with the
fact and law, not based on surmises and conjectures,
but with well assessment of the situation and finally
with due obedience with the decision passed by
Hon'ble Court's."
4. I have perused the documents placed before this
Court. It is apparent form the record that the
petitioners are at the late evening of their life.
Subjecting them to face the rigors of the trial by
asking them to appear in the Court in person is in fact
very harsh at this stage.
5. The allegations made by the opposite party No.1
in the complaint case are seroius. The Court, has
taken cognizance of the offence punishable under
Sections 294/323/325/379/427/447/34 of the IPC.
There are civil dispute pending between the parties.
6. In view thereof, I am of the considered view that,
the prayer made by the petitioners deserves merit.
7. Accordingly, the impugned order dated
16.11.2021 passed by the learned S.D.J.M.,
Kamakhyanagar in 1.C.C. Case No.19 of 2018 and
the order dated 07.08.2023 passed by the learned
Additional Sessions Judge, Kamakhyanagar in Crl.
Revision No.20 of 2021 are set aside and the
petitioners are granted liberty to move fresh
application under Section 205 of the Cr. P.C. before
the learned trial Court. If such application is moved by
the petitioners, the same shall be considered by the
trial Court favourably.
8. With the aforementioned observation, the CRLMC
is disposed of.
(S.S. Mishra)
Judge
Subhasis
Location: High Court of Orissa, Cuttack.
