The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.57 of 2024 Santoshi Kumari Bauri Petitioner(s) Mr. Prasanna Kumar Mishra, Adv. …. -versus- State of Odisha …. Opp. Party(s) Mr. Dhananjaya Mund, AGA CORAM: DR. JUSTICE S.K. PANIGRAHI
Decision
Order No. ORDER 19.02.2024 01. 1. This matter is taken up through hybrid arrangement. 2. In filing this CRLREV, the Revisionist has challenged the order dated 22.12.2023 passed by the learned S.D.J.M, Gunupur in G.R. Case No.206 of 2022. Apart from this challenge, the Revisionist has also sought for a direction from this Court to the learned trial court for dispensing with her personal appearance under Section 205 of the Cr.P.C. and also allowing her to be represented through her Advocate. 3. Learned counsel for the Revisionist submits that since the Revisionist is a Government Servant, it is not possible on her part to attend the court proceeding personally on each date of posting of the matter. 4. He, accordingly, prays for permitting the Revisionist to attend the court proceeding only on the date her presence is Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 20-Feb-2024 17:38:31 utmost required and on the other dates she may be permitted to be represented through her Advocate. Page 1 of 5 // 2 // 5. Learned counsel for the Revisionist also draws the attention of this Court to the provision under Section 205 of the Cr.P.C, which is extracted herein below:- “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.” 6. He further relies on the decision of the Supreme Court in the case of S.V. Muzumdar -Vrs.- Gujarat State Fertilizer Co. Ltd. 1, wherein the Supreme Court has held that while dealing with an application in terms of the provision under Section 205 of the Cr.P.C, the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. In the case of K. Narayan Patra -Vrs.- Gopinath Sahu 2, it was held that Courts should be generous in exempting accused persons from personal appearance. Such appearance is the rule in criminal cases of serious nature, involving moral turpitude, and punishable with imprisonment for a considerable length of time. Court has to weigh inconvenience likely to be caused to the accused if he is Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 20-Feb-2024 17:38:31 1 (2005) 4 Supreme Court Cases 173 2 (1991) 4 Orissa Criminal Reports 486 Page 2 of 5 // 3 // required to be absent from his vocation, profession, trade, occupation and calling for attendance in Court, against prejudice likely to be caused if he does not appear in Court. Whenever personal attendance is insisted upon, there is indubitably some harassment to the accused and the Courts have to see that this harassment not out of proportion to the seriousness of the allegation, the severity of possible punishment on conviction, nature of allegation as they stand out prima facie. 7. In the case of Kamaljeet Singh Ahluwalia -Vrs.- State of Orissa 3, this Court had the occasion to lay down the following guidelines as to how a Magistrate should exercise his power under section 205 of the Cr.P.C.: “(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; (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; (iii) no hard and fast rule or straight jacket formula can be prescribed as to where exemption shall be granted and when it is to he refused. It all depends upon the facts and circumstances and the wisdom of the Court; (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 ease 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; Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 20-Feb-2024 17:38:31 3 Vol. 85 (1998) Cuttack Law Times 372 Page 3 of 5 // 4 // and (v) a liberal construction of the provisions of law be made unless the converse is necessary in the interest of justice.” 8. Further, in the case of Dr. Hemangini Meher Vrs. Sangita Naik & Anr.4 this Court has held as follows:- the “In view of the nature of accusation against the appellant, the age of the appellant and the fact that she is a lady and a public servant and a doctor, whose presence is very much necessary in the hospital, I am of the humble view that the grounds assigned for rejection of the petition under section 205 of Cr.P.C. vide impugned order dated 28.08.2023 passed by Judge, Kalahandi, learned Special Bhawanipatna in C.T. Case No.1064 of 2021 (Special Act) are not sustainable in the eye of law and accordingly, the same is hereby set aside. The learned trial Court shall dispense with the personal appearance of the appellant and she shall furnish an undertaking to the satisfaction of the learned trial Court that the counsel on her behalf would be present in Court throughout the proceeding and that the petitioner shall have no objection in taking the evidence in her absence and further she would personally attend as and when her attendance is required by the learned trial Court.” 9. At this juncture, learned counsel for the State draws the attention of this Court to the provision under Section 317 of the Cr.P.C., which is extracted herein below:- “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, any may, at any subsequent stage of the the personal attendance of such proceedings, direct accused. Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 20-Feb-2024 17:38:31 4 CRLA No.1065 of 2023 decided on 05.12.2023 Page 4 of 5 // 5 // (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.” 10. Considering the submissions of the parties and looking to the decisions as well as the provisions reflected hereinabove, this Court while setting aside the order dated 22.12.2023 passed by the learned S.D.J.M, Gunupur in G.R. Case No.206 of 2022, directs the Revisionist to attend the court proceeding personally only on the date when her presence is utmost required and on the other dates she may be permitted to be represented through her Advocate. 11. The CRLREV is, accordingly, disposed of. Judge (Dr. S.K. Panigrahi) Ayaskanta Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 20-Feb-2024 17:38:31 Page 5 of 5