Allowed

Mahesh Prasad Mishra v. State of Odisha

Orissa HC8 Nov 2021CRLMC/1376/2021

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. to set aside an order refusing exemption from personal attendance. Holding the lower court's unreasoned refusal unsustainable, the Court directed that the accused, posted 330 Kms away, be exempted but remain liable to appear when necessary.

What did the court decide?

Impugned order dated 22.07.2021 set aside. Petitioner under Section 205 Cr.P.C. allowed subject to condition of appearance whenever court considers necessary.

Mahesh Prasad Mishra Vs State of Odisha — Civil Procedure and Limitation | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No.1376 of 2021

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Mahesh Prasad Mishra

…. Petitioner

Mr. G.K.Mohanty

Advocate

-versus-

….
State of Odisha Opposite Party
Mr.S.K.Mishra,
Addl. Standing Counsel
Mr.M.R.Dhal (for informant)
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
08.11.2021.

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Order No.

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This matter is taken up through hybrid mode.

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In the present application filed under Section 482 of Cr.P.C., the Petitioner seeks to challenge the order dated 22^nd July, 2021 passed by the learned S.D.J.M., Puri in G.R. Case No.287/2020 whereby the application filed by him under Section 205 of Cr.P.C. for dispensing with his personal attendance in the case was rejected.

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The brief facts of the case are that the Petitioner is the accused in the aforementioned case, which has been registered

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on the basis of an F.I.R. lodged by one Minati Rani Mohapatra before Singhadwara Police Station on 31^st January, 2020. After investigation Police has submitted charge sheet under Sections 498-A/405 of I.P.C. read with Section 4 of the D.P. Act and cognizance of the said offences was taken by the learned S.D.J.M., Puri. The Petitioner having received a summon from the learned S.D.J.M., Puri, appeared and filed an application under Section 205 of Cr.P.C. with prayer to dispense with his personal attendance in the case on the ground that he is posted at Palasguda Branch in the State of Bank of India, which is at a distance of 330 Kms. from Puri and, moreover, he being posted as the Branch Manager, it may not be possible on his part to appear on each date of posting of the case personally. Learned S.D.J.M., Puri vide order dated 22nd July, 2021, however, did not accept such ground and rejected the petition under Section 205 of Cr.P.C. vide the impugned order.

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Heard Mr. G.K.Mohanty, learned counsel for the Petitioner, Mr. S.K.Mishra, learned Addl. Standing Counsel for the State, and Mr. M.R.Dhal, who has entered appearance suo motu on behalf of the informant-Minati Rani Mohapatra. It is opt to mention that the informant after appearing in the case has also filed a detailed affidavit in opposition to the instant application.

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It is contended by Mr. Mohanty that the Petitioner-accused had sought exemption from personal appearance on valid and justified grounds. It is further submitted that even otherwise

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the personal attendance of the accused is not absolutely necessary on each date of posting of the case and that even after granting exemption from personal appearance, it is open to the court to require the accused to appear personally whenever it is felt proper, which the accused is bound to abide by.

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In support of his contention Mr. Mohanty has cited two decisions of the Hon’ble Supreme Court, i.e. in the case of Puneet Dalmia v. Central Bureau of Investigation, Hyderabad ; reported in (2020) 12 SCC 695, in the case of Sri Rameshwar Yadav and Ors. v. The State of Bihar & Anr .; reported in (2018)4 SCC 608 and one decision of this Court in the case of Ashok Kumar Padhy v. Smt. Pratima Mohapatro ; reported 2020 (1) OLR-191.

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Mr. Dhal, on the other hand, has vehemently opposed the prayer of the Petitioner by opposing that it a ruse adopted by the Petitioner to somehow delay the trial as it is his intention to harass the informant. There are other litigations pending before different courts between the parties and in all such cases, the Petitioner has avoided to appear. Since the accused can always take recourse to Section 317 of Cr.P.C., the learned S.D.J.M., Puri has rightly rejected his prayer for exemption. More so, as law enjoins that the evidence shall be recorded in the presence of the accused.

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Having considered the rival submissions and grounds urged by the Petitioner, this Court is of the considered opinion that

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the same appear to be valid and justified. The learned S.D.J.M., Puri has not given any reasons for not accepting the grounds cited by the accused-Petitioner, which makes the order susceptible to interference. That apart, Section 205 of Cr.P.C. confers power on the court not only to exempt personal attendance of the accused, but also the power to require the accused to personally appear whenever necessary. Therefore, even if the accused is granted exemption from personal attendance on each date of posting of a case, the court is not denuded of its power to require him to appear personally whenever the occasion so arises. Learned S.D.J.M., Puri has also held that the accused can take recourse to Section 317 of Cr.P.C. after his appearance in the court whenever necessary. If such benefit is intended to be granted to the accused, then why should the benefit under Section 205 of Cr.P.C. be not granted, particularly having regard to the fact that the accused is posted at a distance of 330 Kms. from Puri and is presently occupying an important post in a Nationalised Bank.

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The objections raised by the informant as noted above in this regard are not worthy of consideration inasmuch as it is not understood as to how the informant would be prejudiced if the accused is granted the benefit under Section 205 of Cr.P.C. Therefore, while refraining to comment any further in the matter, this Court feels that the objection raised by the informant is entirely unjustified.

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For the reasons cited above and particularly having regard to the law laid by the Apex Court in the case of Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd .; reported in AIR 2001 SC 3625 and in the case of Puneet Dalmia v. Central Bureau of Investigation, Hyderabad (supra), this Court is inclined to allow the prayer for exemption of personal attendance.

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In the result, the CRLMC is allowed. The order dated 22^nd July, 2021 passed by learned SḌ.J.M., Puri in the aforesaid cased is hereby set aside. Consequently, the learned S.ḌJ.M., Puri is directed to allow the petition under Section 205 of Cr.P.C. subject to the condition that the accused shall not dispute his identity and shall appear before the court personally whenever the court considers his appearance necessary.

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The CRLMC is accordingly disposed of.

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Urgent certified copy of this order be granted on proper application.

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(Sashikanta Mishra) Judge

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A.K.Behera

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Mahesh Prasad Mishra v. State of Odisha

Case brief

What is this about?

What did the court decide?

Mahesh Prasad Mishra v. State of Odisha

Case brief

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What did the court decide?

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