Orissa High Court
Application Under Section 482 Of The ... vs State Of Odisha (Vig.) ..... Opposite ... on 8 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 918 of 2025
Application under Section 482 of the Code of Criminal Procedure,
read with Section 528 of the Bharatiya Nagarika Suraksha Sanhita
(BNSS), 2023 challenging the rejection of the application of the petitioner
under Section - 205 Cr.P.C.
--------------
Satyabrata Rout ..... Petitioner
-versus-
State of Odisha (Vig.) ..... Opposite Party
For Petitioner : Mr. J.P. Patra, Advocate
For Opp. Party : Mr. Srimanta Das,
Senior Standing Counsel (Vig.)
--------------------------------------------------------------------------------
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
08.05.2025
Savitri Ratho, J. This CRLMC has been filed challenging the order dated
20.01.2025 passed by the learned Special Judge (Vigilance),
Keonjhar in VGR Case No. 05 of 2013, rejecting the application of
the petitioner filed under Section 205 of the Code of Criminal
Procedure (in short "Cr.P.C.") for dispensing with his personal
attendance.
2. F.I.R. in the case had been filed on 27.07.2013. After
completion of investigation, charge has been framed and trial
against the petitioner and twenty eight others has commenced for
the offences under Section 13(2) read with Section 13(1)(c)(d) of
the Prevention of Corruption Act, 1988 (in short "P.C. Act, 1988)
and Sections- 420/468/409/379/120-B of the Indian Penal Code (in
short "I.P.C.").
3. The petitioner had filed an application U/s.205 of Cr.P.C.
along with medical documents, to dispense with his personal
attendance and permit him to appear through his counsel on the
ground that after being released on bail, he has not violated any of
the conditions imposed in the bail order and as he was a chronic
diabetic and was suffering from heart ailment, for which he was
under treatment, it was difficult for him to personally appear in the
court on each date.
4. The learned trial court rejected the application on
20.01.2025, in view of the seriousness of the allegations against
him and as a condition had been imposed by the High Court while
granting him bail that he should personally appear in the court on
each date of posting of the case.
SUBMISSIONS
5. Mr. J.P. Patra, learned counsel for the petitioner submits that
the petitioner has been released on bail pursuant to order dated
18.08.2015 passed by this Court in BLAPL No. 14292 of 2014. He
submits that the petitioner is a retired Government servant and is
suffering from heart ailment. The medical prescriptions have been
annexed as Annexure-2 series. His further submission is that in
respect of two other co-accused persons, who stand on similar
footing as the petitioner as they have also retired from Government
service, and pursuant to orders of this Court in CRLREV No. 702
of 2014 and CRLMC No. 38 of 2025, their applications under
Section 205 Cr.P.C. have been allowed. As only 55 persons out
157 chargesheeted witnesses have been examined so far in the trial,
the trial is not likely to be completed in the near future. So the
application of the petitioner should have been allowed. He finally
submits that the petitioner is prepared to furnish an undertaking
before the learned trial court that he will not claim any prejudice if
evidence is recorded in his absence and that he will personally
appear before the trial Court as and when directed to do so by the
learned trial Court and that his counsel will be present on all other
dates.
6. Mr. Srimanta Das, learned Senior Standing Counsel does not
dispute the submission that the applications of two other accused
under Section 205 Cr.P.C have been allowed, but submits that in
view of the seriousness of the charges against the petitioner and the
strong possibility that if he does not appear physically in the Court,
the trial which has been pending since twelve years may be further
delayed.
PETITIONS FILED BY CO ACCUSED
7. In Criminal Revision No. 702 of 2014, filed by co accused
Jagadish Mishra, considering the age and precarious health
condition of the petitioner therein, it had been directed by this
Court by order dated 14.08.2024 that if the petitioner moved any
application under Section 205 of Cr. P.C., the same shall also be
considered sympathetically. He is not a retired Government
servant.
8. In CRLMC No. 38 of 2025 filed by co accused Bimal
Prasanna Acharya, considering the advice of the Doctor that he
should not travel long distances as he was suffering from various
ailments, this Court on order dated 08.01.2025 granted him liberty
to move fresh application under Section 205 of the Cr. P.C. for
exemption from the personal appearance before the court below
and for its consideration afresh and during hearing of the petition
with a further direction that till his application was decided. he
would be represented by his counsel on each date of hearing on
moving application under Section 317 of the Cr. Р.С.
9. It is not disputed that the applications of these two co-accused
under Section - 205 Cr.P.C have subsequently been allowed by the
learned trial court.
STATUTORY PROVISIONS
10. Sections- 205, 317 and 273 of the Cr.P.C and Section 22 of
the P.C. Act which are relevant for deciding this application are
extracted below :-
Code of Criminal Procedure
Section - 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."
Section - 273. Evidence to be taken in presence of
accused. Except as otherwise expressly provided, all
evidence taken in the course of the 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 proceeding under
Chapter VIII has been commenced under this Code.
Section 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 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.
Prevention of Corruption Act
Section 22. The Code of Criminal Procedure, 1973 to
apply subject to certain modifications.
- The provisions of the Code of Criminal Procedure,
1973 (2 of 1974), shall in their application to any
proceeding in relation to an offence punishable under
this Act have effect as if,
(a)in sub-section (1) of section 243, for the words The
accused shall then be called upon, the words The
accused shall then be required to give in writing at once
or within such time as the Court may allow, a list of
persons (if any) whom he proposes to examine as his
witnesses and of the documents (if any) on which he
proposes to rely and he shall then be called upon had
been substituted;
(b)in sub-section (2) of section 309, after the third
proviso, the following proviso had been inserted,
namely:Provided also that the proceeding shall not be
adjourned or postponed merely on the ground that an
application under section 397 had been made by the
party to the proceeding.;
(c)after sub-section (2) of section 317, the following
sub-section had been inserted, namely:
(3)Notwithstanding anything contained in sub-section
(1) or sub-section (2), the Judge may, if he thinks fit and
for reasons to be recorded by him, proceed with enquiry
or trial in the absence of the accused or his pleader and
record the evidence of any witness subject to the right of
the accused to recall the witness for cross-
examination.";
(d )in sub-section (1) of section 397, before the
Explanation, the following proviso had been inserted,
namely :-
"Provided that where the powers under this section are
exercised by a Court on an application made by a party
to such proceedings, the Court shall not ordinarily call
for the record of the proceedings,
(a)without giving the other party an opportunity of
showing cause why the record should not be called for;
or
(b)if it is satisfied that an examination of the record of
the proceedings may be made from the certified
copies".
11. Section 205 (1) of the Cr.P.C. provides for dispensing with
the personal appearance of the accused by the Magistrate and the
Magistrate has the power to direct personal attendance of the
accused if necessary at a later stage. Section 273 of the Cr.P.C.
provides that evidence shall normally be recorded in the presence
of the accused or in the presence of his counsel if his personal
attendance has been dispensed with. Under Section 317 of the
Cr.P.C., the Magistrate or the Judge has the power to allow the
accused to appear through his counsel at any stage and continue the
inquiry or trial if he is satisfied that the personal attendance of the
accused is not necessary in the interest of justice or the accused is
disturbing the proceedings in the Court. This section also empowers
the Magistrate or the Judge, if the accused is not represented by a
counsel and his personal attendance is necessary, to adjourn the
case or order that the case of the accused be taken up for trial
separately or direct the personal attendance of the accused. Section
22 (c) of the P.C. Act empowers the Court to record evidence of
any witness in the absence of the accused and his counsel, subject
to the right of the accused to recall the witness for cross-
examination.
JUDICIAL PRONOUNCEMENTS
12. In the case of M/s Bhaskar Industries Ltd. vs M/s Bhiwani
Denim & Apparels Ltd. and others : (2001) 7 SCC 401, the
accused was alleged of having committed offence under the
Negotiable Instruments Act.The Supreme Court has held as
follows :-
"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 the
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 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.
(emphasis supplied)
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."
In the case of Puneet Dalmia vs. C.B.I.: (2020) 12 SCC 695
: (2020) 4 SCC (Cri) 466, the accused was facing trial for
commission of offences punishable under Sections 120 B read
with Sections - 420 and 409 of the IPC and Sections -
9, 12, 13(2) read with Sections 13(1) (c) and (d) of the P.C. Act.
He had approached the Supreme Court as his application under
Section - 205 Cr.P.C had been rejected by the trial court and
confirmed by the High Court. The Supreme Court referred to its
earlier decisions in Bhaskar Industries (supra) and Rameshwar
Yadav vs State of Bihar : (2018) 4 SCC 608, and while allowing
the application has held as follows :-
"6. Heard learned Counsel appearing on behalf of the
respective parties at length. At the outset, it is required
to be noted that the appellant is required to appear
before the learned Trial Court on every Friday and the
appellant as such is appearing before the learned Trial
Court on each and every Friday since 2013. Nothing is
on record that at any point of time the appellant has
tried to delay the trial. The appellant is represented
through his counsel. The appellant is a permanent
resident of Delhi. He is the Director on the Boards of
several companies. The distance between Delhi and
Hyderabad is approximately 1500 kms. Therefore, the
appellant sought for exemption from personal
appearance before the learned Trial Court on each and
every Friday and submitted the application
under Section 205 Cr.P.C. and submitted that on all
dates of adjournments, his counsel Sri Bharadwaj
Reddy shall appear and no adjournment shall be asked
for on his behalf. In the cases of Bhaskar Industries Ltd.
(supra) and Rameshwar Yadav (supra), this Court had
the occasion to consider the scope and ambit of the
application under Section 205 Code of Criminal
Procedure. 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."....
.... "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 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 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 Court 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."
In the case of (Pradip Kumar Mahala v. State of Odisha
(Vigilance): 2023 (II) ILR CUT, relying on the decisions in Ms.
Bhaskar Industries ( supra ) and Puneet Dalmia ( supra), this
Court had allowed the application of the petitioner under Section
205 of the Cr.P.C., who was accused of committing offence under
the PC Act.
DISCUSSION AND CONCLUSION
13. From a reading of Sections 205, 317, 273 of the Cr.P.C. and
Section 22 of the P.C. Act, it is apparent that normally the trial has
to be conducted in the presence of the accused but this is not
mandatory. The Court has the power to record evidence in the
absence of the accused and his counsel, after recording reasons and
subject to the right of the accused to recall such witness for cross-
examination. The Court has the power to dispense with the personal
attendance of the accused and if thereafter, he is not represented by
a counsel, to adjourn the matter and direct for his personal
attendance or order for his case to be taken up or tried separately.
14. It is therefore apparent that an accused can be permitted to
be represented through his counsel in appropriate cases even in
cases like the present case, where insisting on personal attendance
will result in hardship to the accused or will delay the trial or is
against public interest. Courts should insist upon the appearance of
the accused only when it is in his interest to appear or when the
Court feels that his presence necessary for effective disposal of the
case. If an accused can be represented by a counsel and the trial can
proceed in absence of the accused, presence of the accused
necessary should not be insisted upon. As held in the case of
Bhaskar Industries (supra), the concern of the criminal court
should primarily be the administration of criminal justice and for
that purpose the proceedings of the court in the case should register
progress. Presence of the accused in the court should be to enable
the court to proceed with the trial. If the progress of the trial can be
achieved in the absence of the accused, personal attendance should
not be insisted upon, especially when the accused are ladies, public
functionaries. Direction for personal appearance of an accused is
subject to any order which may be passed by the Court under
Sections 205 (2) and 317 (2) of Cr.P.C. for his/her personal
attendance and enforce such attendance.
15. The petitioner claims to be 60 years old and it has been
stated in the cause title that he is a resident of Bhadrak District. It
has not been disputed that he is suffering from heart ailments and is
a diabetic for which he is under treatment.
16. The order dated 20.01.2025 passed by the learned Special
Judge (Vigilance), Keonjhar in VGR Case No. 05 of 2013 rejecting
the application of the petitioner under Section 205 Cr.PC is set side.
17. In view of the provisions of Section 205 and 373 of the
Cr.P.C. and Section 22 (c) of the P.C. Act, the decisions referred to
above and the fact that the petitioner has been granted bail by this
Court and two other co-accused have been granted the benefit under
Section 205 Cr.P.C, I am satisfied that even though the allegations
against the petitioner are serious and involves an offence of moral
turpitude, in view of the health condition of the petitioner, his
personal attendance during the trial can be dispensed with by
imposing suitable conditions and obtaining appropriate undertaking
from him.
18. It is directed that if a fresh application under Section 205
Cr.P.C along with appropriate is filed by the petitioner by
17.05.2025, the same shall be considered and disposed of keeping
in mind the above discussion. It goes without saying that the
learned Special Judge shall impose such conditions as he may deem
fit and proper so that trial is not delayed, including filing of
appropriate undertaking by the petitioner.
19. It is made clear that if at any time, the trial court is of the
view that the petitioner and / or his counsel is/ are trying to delay
the trial, it would be open for the learned Trial Court to exercise its
powers under Section 205 (2) Cr.P.C. and direct for the appearance
of the petitioner on each and every date of adjournment.
20. The CRLMC is accordingly disposed of.
...........................
(Savitri Ratho)
Judge
Digitally Signed Orissa High Court, Cuttack.
Signed by: PUSPANJALI MOHAPATRA
The 8th May, 2025/puspa
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court
Date: 09-May-2025 12:32:25
