Rajendra Ku.Patel Vs State of Orissa

IN THE HIGH COURT OF ORISSA : CUTTACK.

CRLMC No. 571 of 2017

(An Application under Section 482 of the Code of Criminal Procedure, 1973)

Rajendra Kumar Patel … Petitioner
VERSUS
State of Odisha
and Another Opposite parties
…
Advocates appeared in the case:
For the Petitioner : Mr. Ambika Prasad Ray,
Advocate
For the Opposite Parties : Mr. Sangram Keshari Mishra,
Additional Standing Counsel
CORAM:
JUSTICE MURAHARI SRI RAMAN
JUDGMENT
20.01.2023

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MURAHARI SRI RAMAN, J.—

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1. Assailing propriety of Order dated 23^rd August, 2016 passed by the learned Sub-Divisional Judicial Magistrate, Bhubaneswar (“SDJM” in short) refusing to allow petition filed under Section 205 of the Code of Criminal Procedure, 1973 (herein after referred to as “Cr.P.C.”), with a prayer to dispense with personal

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attendance of the petitioner-accused in 1CC No.1114 of 2015, wherein the congnizance of offences was taken under Sections 323, 294, 420 and 506 of the Indian Penal Code, 1860, the instant petition has been filed under Section 482 of the Cr.P.C.

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Facts of the case:

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2. Fact adumbrated by the petitioner leading to invocation of provisions of Section 482, Cr.P.C. is that one Amiyabala Mishra wife of Mahendra Prasad Mishra entered into agreement with the petitioner, who is described as Managing Partner of M/s. Canaan Infraventures LLP having registered office at Plot No.N/3-438, IRC Village, Nayapalli, Bhubaneswar, for sale of land at a consideration of Rs.1,35,00,000/-. At the time of agreement the petitioner paid cash of Rs.11,00,000/- and as a consequence thereof, said Amiyabala Mishra would execute registered sale deed in favour of Sri Biswaranjan Dey and Sri Priyadarshi Jena. Further fact as stated by the petitioner reveals that he, in the capacity of Managing Partner, issued ten numbers of post-dated cheques in favour of aforesaid Amiyabala Mishra-complainant.

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2.1. The allegation of the complainant before the SDJM is that out of ten numbers of post-dated cheques, the cheque bearing Nos.007886, dated 05.10.2014 for an amount of Rs.5,00,000/- and the cheque bearing No.007887, dated 05.10.2014 for an amount of Rs.10,00,000/-, on being presented before the concerned bank, were dishonoured on 27.10.2014. Other two cheques bearing

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Nos.007888, dated 20.12.2014 and 007889, dated 20.10.2014 for sums of Rs.5,00,000/- and Rs.10,00,000/- were also dishonoured on 27.12.2014 on the ground of “funds insufficient”. It is the case of the complainant as stated in the present petition by the petitioner is that the petitioner being approached by the complainant for payment of Rs.30,00,000/-, she was driven out from the office of the petitioner by hurling abuses. Therefore, the complaint has been filed before the learned SDJM.

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2.2. The learned SDJM, on consideration of the material available on record, took cognizance of the offence under Sections 323, 294, 420 and 506 of the Indian Penal Code on 04.03.2016.

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2.3. While the matter stood thus, the petitioner, claiming himself to be busy businessman and is required to travel out of this State quite often and has his business mostly in Ahmedabad in the State of Gujarat, stated in his petition under Section 205, Cr.P.C. that it would not be convenient for him to attend the Court on each date.

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2.4. Considering seriousness of the allegations against the Managing Partner (petitioner), the learned SDJM required physical presence of the petitioner-accused essential at the time of trial and thereby, refused to allow the benefit of dispensing with personal attendance under Section 205, Cr.P.C.

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Contention of the learned counsel for the petitioner:

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3. Sri Ambika Prasad Ray, learned Advocate for the petitioner would submit that the learned SDJM having not weighed the hardship caused to the petitioner by refusing to dispense with the personal attendance, the Order dated 23.08.2016 is liable to be set aside. Sri Ray further submitted that subsequent to such order, the learned SDJM issued non-bailable warrant of arrest vide Order dated 06.02.2017 as the petitioner-accused was absent. The petitioner moved petition under Section 438, Cr.P.C. before this Court and this Court was pleased to pass following Order on 11.04.2017 in ABLAPL No.4136 of 2017:

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“*** Considering the submissions made by the respective parties, the nature of accusation against the petitioner and the fact that the offences are triable by Magistrate and NBW of arrest has been issued against the petitioner, I am inclined to release the petitioner on anticipatory bail and accordingly, this Court directs that in the event of arrest of the petitioner in connection with the aforesaid case, he shall be released on bail on furnishing bail bond of Rs.5,000/- (Rupees five thousand) with two sureties each for the like amount to the satisfaction of the arresting officer with further conditions that he shall make himself available for interrogation by the I.O. as and when required and he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing any facts to the Courts or to the Investigating Officer.

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Violation of any of the above conditions shall entail cancellation of bail.

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The ABLAPL is accordingly disposed of.”

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3.1. Sri Ambika Prasad Ray, learned counsel for the petitioner argued that the learned SDJM ought to have allowed the petition under Section 205, Cr.P.C. in view of principles laid down by the Hon’ble Supreme Court in the case of Bhaskar Industries Ltd. v. Bhiwani & Apparels Ltd., (2001) 7 SCC 401 = AIR 2001 SC 3625 which was followed by this Court in the case of Ashok Kumar Padhy Vrs. Pratima Mohapatro, 2020 (I) OLR 191 . He has submitted that since offences under consideration in Ashok Kumar Padhy (supra) being Sections 448/323/294/506, I.P.C., are identical to the offences taken cognizance of in the instant case, and, therefore, the present petition is liable to be allowed by quashing the Order dated 23.08.2016.

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3.2. Sri Ray further relied on a matter relating to offence under Section 138 of the Negotiable Instruments Act, 1881, in the case of Debasis Samantaray Vrs. State of Odisha, 2003 (II) OLR 219 to contend that even if an application under Section 205, Cr.P.C. is rejected at an earlier stage, such petition can be allowed to be considered at a subsequent stage by invoking the provisions of Section 273 and 317 of the Cr.P.C.

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3.3. Referring to Puneet Dalmia Vrs. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695 the learned counsel for the petitioner submitted that said reported case being of the nature of offences under Section 120B, 420 and 409, I.P.C. read with Sections 9, 12, 13(2), 13(1)(c) and (s) of the Prevention of Corruption Act, 1988, the Hon’ble Supreme Court of India

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permitted the counsel for the petitioner to appear on behalf of the accused and dispensed with personal attendance of the petitioner invoking provisions of Section 205, Cr.P.C.

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3.4. The learned counsel for the petitioner, hence, pressed for exercising power under Section 482, Cr.P.C. to clog abuse of process of court to secure ends of justice.

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Contention of the learned Additional Standing Counsel:

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4. Sri Sangram Keshari Mishra, learned Additional Standing Counsel urged that once the petitioner-accused is given scope to dispense with personal attendance in consideration of provisions of Section 205, Cr.P.C., there would be little chance to further proceeding in the trial. Referring to copy of certified copy of order-sheet maintained by the Court of JMFC-III, Bhubaneswar, which is in seizin of the matter at present, learned Additional Standing Counsel submitted that after bail under Section 438, Cr.P.C. being granted on 11.04.2017 by this Court, the petitioneraccused has taken no step before the concerned court. Said ordersheet would clearly show that on 06.02.2022 and 05.07.2022 no step was taken either by the petitioner-accused or by his counsel. This is indicative of the fact that in the event the petition under Section 205, Cr.P.C. is allowed in favour of the petitioner, it would be difficult to ensure attendance of the petitioner at any stage of trial as the petitioner has himself stated in the present petition as follows:

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“4. That as the matter stood such the present petitioner filed a petition under Section 205, Cr.P.C. for dispensing with his personal appearance stating therein his all difficulties as he is a businessman and most of the time staying and doing business at Ahmedabad ***”

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4.1. Amplifying his submission, Sri Mishra submitted that since the accused stays outside the State of Odisha and doing business at far off place, and more particularly when record shows his advocate did not take step(s) on the date fixed before the learned court concerned, there is no warrant to show any indulgence to the petitioner.

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4.2. Sri Mishra brought to the notice of this Court a Judgment of the Hon’ble Supreme Court in the case of Vijay Lakhani Vrs. Jayesh Shah, (2016) 15 SCC 94, and submitted that said Court allowed prayer for dispensing with personal attendance of the accused under Section 205, Cr.P.C. with a condition that the petitioner was required to deposit entire amount which was subject-matter of complaint. Since the petitioner in the instant case has not offered to fulfil such a condition, leniency should not be shown to him.

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Consideration of rival contentions and reasons for the decision:

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5. At the outset the following provisions may be required to be taken note of:

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“205. Magistrate may dispense with personal attendance of accused.—

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(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.

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(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.

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273. Evidence to be taken in presence of accused.—

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Except as otherwise expressly provided, all evidence taken in the course of 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.

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Explanation.—

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In this section, ‘accused’ includes a person in relation to whom any prceeding under Chapter VIII has been commenced under this Code.

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317. Provision for inquiries and trial being held in the absence of accused in certain cases.—

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(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 and the personal attendance of such accused.

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(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his

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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.

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482. Saving of inherent power of High Court.—

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Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

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5.1. An essential feature of criminal jurisprudence is that the trial of an offence should take place in the presence of the accused and nothing should take place behind the back of the accused. The Court is required to take steps to ensure that a fair-trial is given to him. This principle has been embodied in Section 273 of the Cr.P.C. which provides, as a general rule, that all evidence taken in the course of trial shall be taken in presence of the accused. While such a rule is mainly for the protection of the interest of the accused, Cr.P.C. has provisions allowing courts the discretion, in certain circumstances, to exempt an accused from personal attendance. However, exemption from personal attendance is not available to an accused as a matter of right; and is subject to the discretion of the Magistrate.

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5.2. The personal attendance of the accused can be dispensed with either under Section 205 or Section 317 of Cr.P.C. Conjoint reading of these provisions makes it clear that the court is empowered to dispense with the personal attendance of the

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accused at all stages. While Section 205 gives discretion to the Magistrate to dispense with personal attendance right from the stage of commencement of the proceedings; Section 317 covers the stage after commencement of the inquiry or trial. It is, therefore, stated that there is no hard and fast rule governing the field to exercise this power and each case has to be considered after giving due weight to the attendant circumstances. Ordinarily, the Court should be generous and liberal in exempting the accused from personal attendance except in case of serious nature, and cases of moral turpitude. The Court is required to consider the nature of accusation and the prejudice, if any, likely to be caused if personal attendance is made compulsory. Therefore, in trivial cases, personal attendance of the accused should be exempted as a rule, if no prejudice was likely to be caused in the fair trial. The Court may also look into the inconvenience to be caused if the accused is required to remain absent from his vocation, profession, trade or occupation by calling him for attendance in the Court against the prejudice likely to be caused if he does not appear in the Court. See Gopalram and Others Vrs. State of Rajasthan and Others, MANU/RH/0781/1994 .

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5.3. The Hon’ble Madras High Court in the case of Ajay Kumar Bisnoi Vrs. KEI Industries Ltd., 2015 SCC OnLine Mad 10397 made it clear that in the matter of exempting the accused from personal appearance in appropriate cases, Criminal Procedure Code has given ample discretion to the Courts. Section 205(1)

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enables the Magistrate to dispense with the personal attendance of the accused and permit him to appear by his pleader, if he is satisfied with the reason mentioned by the accused. Ordinarily in a criminal case, evidence has to be recorded in the presence of the accused, however, Section 273 Cr.P.C. envisages that in appropriate cases, the personal appearance of the accused could be dispensed with and evidence could be recorded in the presence of the pleader. Likewise, Section 317 Cr.P.C. also empowers the Judge or Magistrate to be satisfied and for reasons to be recorded, that the personal attendance of the accused before Court is not necessary in the interest of justice, the Judge or Magistrate can dispense with the personal attendance of the accused and proceed with the enquiry or trial in his absence. When the appearance of the petitioners/accused has been undertaken by the counsel, the absence of accused has nothing to do with the progress of the case and there is no impediment for the Court in proceeding with the case in the presence of the counsel of the petitioner-accused. It is well settled that the process of the court should not be used for harassment of litigants and the insistence on the appearance of the parties before the Court need be only if it becomes absolutely necessary for some purpose. In fact, the very existence of the Court is only for dispensation of justice. The reason cited by the petitioners in the said case for their inability to make appearance before the Court is that busy businessmen and frequently travel abroad and also to look after day to day affairs of their company and to permit their counsel to appear and represent on their behalf

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on all hearing dates. The said reason cited by the petitioners has been accepted as reasonable by the Madras High Court and hence, their personal appearance is directed to be dispensed with by permitting their counsel to appear and represent on their behalf. It was noted that the absence of the petitioners will not hamper the progress of the case proceedings.

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5.4. Thus effectively, an accused is entitled to seek exemption from personal appearance right from the initial stages including the first appearance, after satisfying the Court with proper reasons. Further, the accused need not appear personally to seek exemption. Section 205(1) states that even at the stage of issuing summons, the Magistrate may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear through his pleader. The purport of dispense with personal attendance under Section 205, Cr.P.C. is that the court is supposed to adopt a generous and liberal approach and thereby the proceedings can be taken in the case against the accused expeditiously and the hearing is not adjourned only for the absence of the accused.

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5.5. Significant to note that the Hon’ble Kerala High Court has illustratively placed certain categories of accused persons for consideration under Section 205, Cr.P.C. in the case of Helen Rubber Industries Vrs. State of Kerala , 1972 SCC OnLine Ker 124. It is stated in said case that in all trivial and technical cases, where the accused are ladies, old and sickly persons, workers in

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factories, daily wage earners, other labourers and busy business people or industrialists, the courts should invariably exercise discretion liberally to exempt such persons from personal attendance.

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5.6. In R.P. Gupta Vrs. State of Madhya Pradesh, 2006 SCC OnLine MP 591 the legal position with regard to dispense with personal attendance has been summarized. It was observed that the courts should be generous and liberal in granting exemption to accused persons particularly in cases which are of trivial or technical nature. Personal appearance is the rule in criminal cases of a serious nature, involving moral turpitude. If the accused persons are duly represented by their counsel, their personal attendance may not be insisted by the Court.

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5.7. In a case where the accused was serving abroad, the Hon’ble Court considering the plight of the accused in the case of Benny P.R. Vrs. State of Kerala 2017 SCC OnLine Ker 38293 , directed as follows:

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“4. Exemption can be granted to the petitioner from personal appearance in this case and his presence shall be insisted only on the posting dates, on which, his personal presence is actually required. The court below shall, in advance, direct such personal presence of the accused at least one month before, so that the petitioner shall appear before the court below. Matters being so, Annexure-A4 order is liable to be quashed. The request of the petitioner is granted.”

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5.8. In Bhaskar Industries Ltd. (supra) at paragraphs 14, 15, 17, 18 and 19 it has been observed and held as under:

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“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.

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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 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 a 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.

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17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through

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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.

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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.

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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

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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.”

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5.9. The Hon’ble Supreme Court in the case of Puneet Dalmia (supra) while allowing the accused to be represented by his counsel, dispensed with the personal attendance of the accused with certain conditions. The following is the observation of the Hon’ble Supreme Court in the said reported case:

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“8. 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 [Puneeth Dalmia Vrs. State, 2018 SCC OnLine Hyd 1903] 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 Shri Bharadwaj Reddy to appear on his behalf is hereby allowed on the following conditions:

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8.1. That the appellant shall give an undertaking to the learned trial court that he would not dispute his identity in the case and that Shri Bharadwaj Reddy, Advocate who is permitted to represent the appellant, would appear before

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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 Shri Bharadwaj Reddy.

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8.2. 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.

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8.3. If there is any failure on the part of the Advocate Shri 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.”

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5.10. Hon’ble Delhi High Court in Chandramauli Prasad Vrs. State of Delhi, 2008 SCC OnLine Del 759 = ILR (2009) II Delhi 48 examined Section 205 Cr.P.C. in the light of the decision of the Supreme Court in Bhaskar Industries Limited (supra) and held that provisions requiring the presence of the accused which mandate that the trial be held in his presence are enacted for the benefit of the accused. If the accused person himself does not wish to avail of the right of personal appearance on every date; if he reposes the fullest confidence in the court and in his advocate, and is confident that justice will be meted out to him even in his absence, then, provided his absence does not prejudice him in any

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way or hinder the progress of the trial, it is not necessary for the trial court to insist on his presence.

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5.11. Noteworthy to place here the view expressed by our own High Court in the case of Rusi Biswal Vrs. Nakhyatra Malini Debi, AIR 1954 Ori 65 that it is not obligatory on the Magistrate to require the personal attendance of the accused, who has been exempted under Section 205, at any stage; and if the Magistrate is satisfied that the examination of the Mukhtar on behalf of the accused is sufficient, the non-examination of the accused personally could not render the trial illegal.

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5.12. In Mathew Vrs. State of Kerala , 1985 SCC OnLine Ker 253 , the power of the Magistrate to grant an exemption for the first appearance in a prosecution for the offence under Section 420 of IPC was considered by the Kerala High Court. In the said case, the accused was in Switzerland, and a non-bailable warrant was issued against him and his passport was also impounded, making his return impossible. While considering the application for exemption under Section 205 of Cr.P.C., it was observed as follows:

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“The very existence of the courts is for dispensation of justice. The process of courts should not be used for harassment of litigants. The insistence on the appearance of parties before court need be only if it becomes absolutely necessary for some purpose. Courts are entitled to compel the appearance of the accused. But such insistence should not be for the mere pleasure of the accused being seen in the dock. Sometimes, his presence may be absolutely

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essential, say for instance for questioning him or for himself being identified by witnesses. Insistence on his appearance in such cases may be alright. To insist on his appearance on a day when his appearance has nothing to do with the progress of the case will only result in unnecessary harassment, especially when he has some inconvenience and his counsel is prepared to represent him. In this case that is what actually happened. The petitioner who is the accused before the Magistrate is already in Switzerland. Even if he wanted he was not in a position to come over to India and appear before the Magistrate because on the requisition of the Magistrate himself his passport was impounded by the concerned authorities. The Magistrate ought to have realized the fact that under such circumstances appearance of the accused before him was rather an impossibility. One could only enjoy sadistic pleasure by insisting or an unnecessary impossibility and penalizing a person for not complying with such a condition.”

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5.13. In Raju T.P. Vrs. State of Kerala, 2009 (3) KHC 14 , which was a case where the accused was working in Pune, it was held by the Kerala High Court that the said power could be exercised subject to the discretion of the court. It was further observed that discretion is to be exercised considering not only the convenience of the prosecution but also the difficulties expressed by the accused. It was further observed that the said power is available in warrant cases as well.

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5.14. This Court has taken consistent view regarding the scope of Section 205 of the Code of Criminal Procedure which is to the following effect vide Kamaljeet Singh Ahluwalia Vrs. State of Orissa, 1998 CriLJ 2191 = 85 (1998) CLT 372 :

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“i) personal appearance of the accused in a criminal trial is the normal rule and exempting from personal appearance is an exception which can be resorted to in suitable cases by due exercise of judicial discretion;

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ii) when the alleged offence(s) involves moral turpitude, relates to grievous offences or prescribes considerable length of substantive sentences, the Court exercising the discretion shall take the total fact and circumstances into consideration and through a speaking and reasonable order exercise the discretion judiciously;

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iii) no hard and fast rule or a strait-jacket 'formula can be prescribed as to where exemption shall be granted and when it is to be refused. It all depends upon the facts and attendant circumstances and the wisdom of the Court;

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iv) when there is no prospect of quick disposal of the case, no question involves identity of the accused, direction for personal appearance may cause harassment as in the case of Paradanasini ladies, old, ailing or infirm persons or Government servants or business man, Court should consider their case keeping in view to the totality of all circumstances; and

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v) a liberal construction of the provisions of law be made unless the converse is necessary in the interest of justice.”

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5.15. In Tilotama Vrs. Ranjitarani, 1992 (I) OLR 437, it has been held that the Magistrate while exercising his judicial discretion under Section 205, Cr.P.C. should not take too technical approach and reject the prayer for dispensing with personal attendance merely because the plea taken by the accused in the petition is not satisfactorily established. The Magistrate should concentrate more on the question whether personal attendance of

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the accused is necessary for the purpose of the case. It is further held that in case of Pardanashin women, Courts have consistently taken the view that although there is no exception in law merely because the accused is a Pardanashin woman, discretion must be reasonably exercised by consideration of social status and custom and also the nature of the offence; ordinarily exemption should be granted unless a strong prima facie case is made out against it. The discretion should be liberally exercised in view of general feeling which exists against public appearance of women and the fact that procedural law is frequently abused to gratify personal malice.

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5.16. In the case of Benjamin Roul Vrs. Sajal Das, 2017 SCC OnLine Ori 303, in the context of congnizance of offence under Section 406 of the Indian Penal Code, this Court setting aside the rejection of the application under Section 205 of the Cr.P.C. observed as follows:

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“ 9. The learned Magistrate has neither taken the social status of the petitioner, his age nor the necessity of personal attendance of the petitioner. Apart from the fact that the offence is triable by Magistrate, considering the nature of accusation in the case and the age of the petitioner, I am of the view that the learned Magistrate has not exercised the judicial discretion properly and he should not have mechanically rejected the application under Section 205 Cr.P.C. filed by the petitioner.”

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5.17. When legal position is analysed vis-à-vis scope of Section 205, Cr.P.C., it is culled out as follows:

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i. The petition under Section 205, Cr.P.C. must receive liberal consideration;

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ii. The petitioner would not dispute the identity as particular accused in the case;

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iii. A counsel on his behalf will be present on all the dates of posting;

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iv. The accused has no objection in taking evidence in his absence;

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v. The accused would make himself available on any date when his presence is needed in the case;

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vi. Provisions of Cr.P.C. do not restrict a Magistrate from fixing up conditions while granting an application for dispensing with personal attendance;

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vii. In certain cases, the courts have insisted on deposit of the amount which is subject-matter of the complaint in order to grant relief of personal attendance under Section 205, Cr.P.C;

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viii. The process of the Courts should not be used for harassment of litigants and the appearance of the parties before the Court must be insisted upon only if it becomes absolutely necessary for some purpose;

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ix. The purpose of the criminal court should be administration of justice and progress of the case; and insistence upon appearance of the accused in all cases ought to be avoided.

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x. Exception has been discussed in Cardinal Mar George Alencherry Vrs. Joshi Varghese and Others, 2022 SCC OnLine Ker 5737 as follows:

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“25. Now, coming to the facts of this case, the

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offences alleged against the petitioner include those under Sections 409, 420 and 467 of the Penal Code, 1860, which are punishable with imprisonment for seven years or more. In some of the cases, the offences alleged against the petitioner are under Sections 406 and 423, read with 120B of IPC. Even though the punishment for the said offences is imprisonment for a term lesser than seven years, those offences come under Chapter XVII of IPC, and hence for that reason, that would come under SubSection (3) of Section 437 of the Cr.P.C. Therefore, the rigour of the said provision applies to all the cases of the petitioner. Unless there are exceptional grounds, the exemption from personal appearance for the first appearance cannot be granted. As mentioned above, in the Bhaskar Industries case (supra), the reasons mentioned are due to the far distance at which the accused resides or carries on business or on account of physical or other goods reasons.”

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Conclusion:

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6. Applying the enunciation of law as discussed in the foregoing paragraphs to the present fact-situation, it is apparent

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that the Order dated 23.08.2016 of the SDJM refusing to dispense with personal attendance in consideration of provisions contained in Section 205 of the Code of Criminal Procedure cannot withstand. The ground on which the learned Magistrate rejected the petition under Section 205, Cr.P.C. is that “although accused No.2 is a busy in day to day his business work as per his submission in his petition, it would not be difficult on his part to appear before the Court as he is attending day to day business work”. From the copy of certified copy of note-sheet maintained in the case record it could be ascertained that both the complainant and the accused remained absent on certain dates. Perusal of said document also indicates that on very many occasions, viz ., 03.12.2020, 21.09.2021, 04.01.2022 and 11.02.2022 the Court could not proceed with the matter on account of accommodation sought for by the Bar. Thus, it is safe to say that the default cannot be attributed to the accused alone in the present facts and circumstances. The matter did not proceed but for other attending circumstances.

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6.1. It may also be noteworthy to refer to the following observation of the Madras High Court in Ajay Kumar Bisnoi Vrs. KEI Industries Ltd., 2015 SCC OnLine Mad 10397, where the counsel abstained from appearing before the court for his client:

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“15. However, this Court is much concerned if the counsel who is permitted to represent the petitionersaccused is absent on the ground of boycott. In such circumstances, the Court below is at liberty to proceed in

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accordance with law. Persons belonging to the legal profession are concededly the elite of the society. They have always been in the vanguard of progress and development of not only law but the polity as a whole. Citizenry looks at them with hope and expectations for traversing on the new paths and virgin fields to be marched on by the society. The profession by and large, till date has undoubtedly performed its duties and obligations and has never hesitated to shoulder its responsibilities in larger interests of mankind. The lawyers, who have been acknowledged as being sober, task-oriented, professionally-responsible stratum of the population, are further obliged to utilise their skills for socio-political modernisation of the country. The lawyers are a force for the perseverance and strengthening of constitutional government as they are guardians of the modern legal system. *** It is well known that several clients are paying through their nose by borrowing heavily to their advocates and it is a matter of life and death for them. Advocates who are boycotting the Courts for one cause of so, should not ignore the fact that there have been several causes before the Courts pending for disposal and their act of boycotting would lead to a travesty of justice and destroy the basic democracy, which would tantamount to failure of administration of justice. Failure of a lawyer to attend to his case in court would not only be breach of contract and breach of trust, but also professional misconduct. ***”

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6.2. It is transpired from reading of impugned Order dated 23.08.2016 that while rejecting, the learned Magistrate had not taken note of the principles for consideration of the petition to dispense with personal attendance under Section 205, Cr.P.C. as laid down by different Courts. Thus, the reasons ascribed in the impugned order being not germane, the Order dated 23^rd August, 2016 is hereby set aside.

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6.3. Apposite here to refer to the view expressed by this Court in Debasis Samantaray Vrs. State of Odisha, 2003 (II) OLR 219 . It has been observed in the said case as follows:

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“7. A perusal of the impugned order dated 13.12.2002 reveals that the SDJM was labouring under the erroneous impression that before considering the application under Section 205, Cr.P.C., personal appearance of the accused in court is very much necessary. This point has been clearly answered by this Court in Somanath Misra Vrs. State, (1990) 3 OCR 577, relying on several, decisions and it has been held that it is not mandatory for the accused to personally appear in Court before filing the application under Section 205(1), Cr.P.C. The said view was later on reiterated in the case of Kaveri alias Benga alias Sukanti Raikarai Vrs. State, (1994) 7 OCR 645 = 78 (1994) CLT 881. In the said decision, the application for dispensing with personal attendance of the accused in Court under Section 205, Cr.P.C. was considered by High Court in spite of the fact that the accused had been shown as absconder in the charge sheet and N. B. W. had been issued. The question as to under which circumstances personal attendance of the accused can be dispensed with had been considered by this Court in the decisions cited supra as well as in Ramesh Ch. Lath Vrs. State, (1992) 5 OCR 97 = 1992 Cri LJ 2263, Bikram Vrs. State, (1994) 7 OCR 721, Radhanath Vrs. Babulal 62 (1986) CLT 445, and last but not the least, Surojit Vrs. Sanatan, (1999) 17 OCR 473. The ratio of the aforesaid decisions is that the power under Section 205(1), Cr.P.C. can be exercised by a Magistrate not only at the stage of issuance of summons to the accused, but also at subsequent stage even after issuance of N.B.W. Law is no more res integra that even if an application under Section 205, Cr.P.C. is rejected at an earlier stage, such petition can be allowed at a subsequent stage by invoking the provisions of Sections 273 and 317, Cr.P.C. Thus, it can be safely

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concluded that an application under Section 205, Cr.P.C. is maintainable even though the accused has not appeared personally and the Magistrate should not hesitate to extend the discretion only on that ground.

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8. The view expressed by me also gets fortified by a decision of this Court in Durowellds Pvt. Ltd. Vrs. TISCO, 94 (2002) CLT 726. In the said decision it has been reiterated that if the Magistrate finds that insistence on personal attendance of the accused in the case would cause serious difficulty and inconvenience and the comparative advantage would not overweigh non-appearance, he should allow a petition under Section 205, Cr.P.C. The offence alleged in this case is under Section 138, N.I. Act, the cheque issued by the petitioner in favour of opposite party No.2 having been dishonoured or bounced by the Bank. The case, as it appears, mostly depends on documentary evidence. As such, appearance of the accused petitioner on each date to which the case stands posted need not be insisted upon by the Magistrate. But then if, according to the Magistrate, during the trial presence of the accused becomes necessary, he is loathed with power under subsection (2) of Section 205, Cr.P.C. to direct his attendance in Court. In other words, for effectual trial, if the presence of the accused alleged to have committed the offence under Section 138, N.I. Act becomes necessary, it will be open to the Court below to insist on his personal attendance in Court.”

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6.4. In Manoj Narain Agrawal Vrs. Shashi Agrawal & Ors., (2009) 6 SCC 385 , while observing that the High Court cannot lay down directions for the exercise of discretion by the Magistrate under Section 205 of the Code, had echoed the following views:

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“Similarly, the High Court should not have, for all intent and purport, issued the direction for grant of exemption from personal appearance. Such a matter

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undoubtedly shall be left for the consideration before the learned Magistrate. We are sure that the Magistrate would exercise his jurisdiction in a fair and judicious manner.”

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6.5. It is equally trite that the inherent powers of the High Court under Section 482 of the Cr.P.C. have to be exercised sparingly with circumspection, and in rare cases to correct patent illegalities or to prevent miscarriage of justice. In Madhu Limaye Vrs. The State of Maharashtra, (1977) 4 SCC 551 , the Hon’ble Supreme Court of India had observed that:

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“*** the following principles may be noticed in relation to the exercise of the inherent power of the High Court:

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(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

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(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

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(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.”

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6.6. In the above respect reference may also be had to TGN Kumar Vrs. State of Kerala, (2011) 2 SCC 772.

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7. In the result, for the reasons mentioned supra and in the light of the above discussions, this Court is of the considered view that the Order dated 23^rd August, 2016 passed by the learned SDJM, Bhubaneswar rejecting the petition of the petitioner-

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accused under Section 205 of the Code of Criminal Procedure, 1973 cannot be countenanced and this Court is inclined to set aside the said order.

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7.1. While setting aside the said Order dated 23.08.2016, it is requested that the learned Magistrate is required to consider the application of the petitioner under Section 205 of the Code of Criminal Procedure afresh and take a decision whether the petitioner-accused can be dispensed with personal attendance keeping in view the discussions made above and guidelines contained in different Judgments referred to supra .

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7.2. Needless to say that the learned Magistrate may also impose such conditions as may be deemed fit and proper in the instant case. It is clarified herewith that in the event of personal attendance is dispensed with on fresh consideration by the learned Magistrate on imposition of condition(s), if any, the counsel for the petitioner-accused shall be present in Court throughout the proceeding and the petitioner shall have no objection if evidence is taken in his absence. It is also made clear that the petitioneraccused shall attend the court personally as and when he is required to do so by the court concerned.

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7.3. While it is hoped that the petitioner-accused will cooperate in the trial, considering that the matter relates to 2014-15, the learned Magistrate shall make an endeavour to conclude the trial

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of 1CC No.1114 of 2015 (now stated to be pending before the JMFC-III, Bhubaneswar) as expeditiously as possible.

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7.4. Accordingly, the Criminal Miscellaneous Case is disposed of with the aforesaid terms and observations.

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(Murahari Sri Raman)
Judge
Laxmikant

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