Orissa High Court
Kailash Mahakud vs ) State Of Odisha ..... Opposite Parties on 31 July, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2871 of 2025
Kailash Mahakud ..... Petitioner
Represented By Adv. -
Mr. Sarada Prasad Dash
-versus-
1) State of Odisha ..... Opposite Parties
2) Biswanath Behera Represented By Adv. -
Mr. C.M. Singh, ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
31.07.2025
Order No.
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard the learned counsel for the Petitioner. Perused the
application as well as the documents annexed thereto.
3. By filing the present application under Section 482 of Cr.P.C.,
the Petitioner seeks to invoke the inherent power of this Court to
quash the order dated 12.02.2025 passed by the learned J.M.F.C.,
Soro in 1.C.C. Case No.01 of 2023 thereby rejecting the application
of the Petitioner filed under Section 205 of Cr.P.C. to dispense with
his personal appearance.
4. Learned counsel for the Petitioner, at the outset, contended that
the present case arises out of a compliant made under Section 138 of
N.I. Act. He further submitted that the proceeding under Section 138
of N.I. Act is entirely based on documentary evidence. However, the
trial court under a misconception of law has rejected the application
of the Petitioner vide order dated 12.02.2025 on the ground that the
presence of the accused person is needed for proper adjudication of
the case and the case is posted for production of accused.
5. On a close scrutiny of order dated 12.02.2025, this Court
observes that the trial court has not considered the application of the
Petitioner in terms of the provision contained under Section 205 of
Cr.P.C. and in its proper perspective. Section 205 of Cr.P.C. confers
discretion on the court to dispense with the personal attendance of the
accused persons before the court in a case where the trial involves
documentary evidence. So far as the cases under the N.I. Act are
concerned, they are typically entirely based on documentary
evidence. The applicability of the provision of Section 205 of
Cr.P.C. to the cases under Section 138 of N.I. Act has been
elaborately discussed in the judgment of this Court in Debasis
Samantaray v. State of Orissa and another, reported in (2003) 25
OCR - 594. In para-8 of the aforesaid judgment it has been observed
that the case under Section 138 of N.I. Act mostly depends on
documentary evidence.
6. In view of the aforesaid provision of law, this Court is of the
view that the order dated 12.02.2025 passed by the learned J.M.F.C.,
Soro in 1.C.C. Case No.01 of 2023 is unsustainable in law and,
accordingly, the same is hereby set aside. Further, the matter is
remanded back to the trial court to reconsider the application of the
Petitioner under Section 205 of Cr.P.C. in accordance with law.
7. Moreover, with regard to the issue as to whether the
appearance of accused is essential for consideration of an application
under Section 205 of Cr.P.C., this Court would like to refer to the
judgment in Somnath Mishra v. State, reported in (1990) 3 OCR 577
wherein it has been held that it is not mandatory for the accused to
personally appeared in court before filing the application under
Section 205 of Cr.P.C. Such proposition has been subsequently
reiterated in Kaberi @ Benga @ Sukanti Paikarai v. State, reported
in (1994) 7 OCR 645.
8. With the aforesaid observation and direction, the CRLMC
stands disposed of.
( A.K. Mohapatra )
Judge
Debasis
