The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1718 of 2021 Sachidananda Choudhury and Others …. Petitioners Mr. Debasis Sarangi, Advocate -Versus- State of Orissa and Another …. Opposite Parties Mr. S.S. Mohapatra,ASC Mr. S.K. Dwibedi, Advocate for O.P. No.2 CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:18.04.2023 1. The petitioners have approached this Court by invoking its extra-ordinary jurisdiction under Section 482 Cr.P.C. for quashing of the order dated 26th August, 2021 passed in 1CC Case No.50 of 2020 by the learned S.D.J.M., Berhampur, whereby, an application under Section 205 Cr.P.C from personal exemption in terms thereof was declined and rejected. 2. The opposite party No.2 filed complaint (Annexure-1) in 1CC Case No.50 of 2020 with regard to series of events commencing from 2018 and onwards with a cause of action dated 26th October, 2019, the date on which, the petitioners said to have entered into his office and hackled and forced him to sign and submit resignation and also assaulted him when he demanded the investment to be returned and when the liability was declined altogether by the letter dated 11th November, 2019 received by him, wherein, petitioner No.1 even refused to acknowledge his contribution to the trust and also to return the amount with an intention to misappropriate the same. Consequent upon receiving the complaint, the learned court below passed the order of CRLMC No.1718 of 2021 Page 1 of 5 Sachidananda Choudhury and Others Vrs. State of Odisha and Another cognizance under the alleged offences and thereafter passed the impugned order dated 26th August, 2021. The said decision of the learned court below declining the exemption in terms of Section
Legal Reasoning
205 Cr.P.C. is challenged by the petitioners on the ground that it should have been allowed considering the nature of dispute and fact that all of them required to travel a distance of 400 to 500 kilometers to attend the court at Berhampur on each and every date of the posting of the case which is likely to cause immense inconvenience to them, the fact which was completely lost sight of by the learned S.D.J.M., Berhampur, who is an mechanical manner and without judicial application of mind rejected it with a conclusion that the offences are grievous in nature ignoring the nature of dispute inter se parties which is with regard to management of a residential college.
Legal Reasoning
3. Heard Mr. Sarangi, learned counsel for the petitioners, Mr. Mohapatra, learned counsel for the State opposite party No.1 and Mr. Dwibedi, learned counsel for the opposite party No.2, namely, complainant. 4. Mr. Sarangi, learned counsel for the petitioners submits that the complainant-opposite party No.2 was in judicial custody for more than a month in connection with Nabarangpur P.S. Case No.292 of 2019 corresponding to G.R. Case No.929 of 2019 which is in connection with dispute over the management of the college and alleged mischief committed by him. It is also submitted that the petitioners are required to travel to Berhampur which is at a distance of 400 to 500 kilometers and having regard to the fact that the complaint is at the behest of opposite party No.2 with the allegation that his contribution to the trust and the fund he provided was not acknowledged and it was in respect of an incident dated 26th October, 2019, long after which the complaint in the month of February, 2020 came to be filed and that too CRLMC No.1718 of 2021 Page 2 of 5 Sachidananda Choudhury and Others Vrs. State of Odisha and Another when the petitioners are involved in day-to-day management of the college and all of them devote much time to be organizational work and also having no criminal antecedent, the learned court below fell into serious error in declining personal exemption in terms of Section 205 Cr.P.C. 5. Mr. Dwibedi, learned counsel for opposite party No.2 complainant submits that the learned court below did not commit any serious error and rightly considering the nature and gravity offences alleged and taking cognizance of the fact that the petitioners committed the alleged mischief while running the educational institution rejected such a move and request to dispense with their personal attendance. While contending so, Mr. Dwibedi, refer to an order dated 7th October, 2021 of the Apex Court in Special Leave to Appeal (Crl.) No(s).5191 of 2021 and judgments of this Court in Kamal Kumar Mohanty and Others Vrs. State of Odisha, (2000) (CMC Case No.3109 of 1999 and disposed of on 7th December, 2000) and of the Supreme Court in Lily Begum Vrs. Joy Chandra Nagabanshi (Criminal Appeal No.600 of 1993) decided on 20th September, 1993 to contend that there has been no illegality committed by the learned court below having denied exemption in appearance of petitioners under Section 205 Cr.P.C. and hence, therefore, the impugned order dated 26th August, 2021 is not liable to be interfered with. 6. The appearance of an accused in a criminal prosecution is the rule and exemption is an exception. In normal circumstances, an accused is directed to appear before the criminal court and apply for bail and any such exemption under Section 205 Cr.P.C. depends on the nature and gravity of the offences and whether any of the offences relates to moral turpitude. An accused cannot claim exemption in terms of Section 205 Cr.P.C. as a matter of CRLMC No.1718 of 2021 Page 3 of 5 Sachidananda Choudhury and Others Vrs. State of Odisha and Another right. It has been alleged that petitioner No.1 lodged an FIR against opposite party No.2 which resulted in registration of a case in 2019 and thereafter, the complaint is said to have been filed. The dispute relates to the management of a college with the allegation that the accounts has not been properly maintained and that apart, according to opposite party No.2, some irregularities have also been committed in the appointment of teaching and non-teaching of staff in violation of the Government guidelines. In the capacity of the office bearers or trustees of the college, the petitioners said to have committed the alleged mischief. A similar allegation is directed against opposite party No.2 and as earlier mentioned, a report was lodged against him at the instance of petitioner No.1. The petitioners are native of Nabarangpur, whereas, the complaint is filed in the court at Berhampur which is at considerable distance. Having regard to the dispute between the parties and lodging of an FIR by petitioner No.1 and thereafter, filing of the complaint by opposite party No.2 and the fact that the petitioners in their official capacity and while running affairs of a residential college allegedly did the mischief, in the humble view of the Court, the learned court below ought to have considered and allowed exemption under Section 205 Cr.P.C. Unless the personal exemption of the petitioners is allowed, they are likely to face a lot of hardship and inconvenience in attending the court proceeding at Berhampur. Though, the offences are alleged against the petitioners, which are in relation to misappropriation of money contributed by opposite party No.2, in the peculiar facts and circumstances of the case, the learned S.D.J.M. Berhampur should have considered the plea and permitted exemption in terms of Section 205 Cr.P.C. 7. Accordingly, it is ordered. CRLMC No.1718 of 2021 Page 4 of 5 Sachidananda Choudhury and Others Vrs. State of Odisha and Another 8. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order dated 26th August, 2021 passed in 1CC Case No.50 of 2020 is hereby set aside. Consequently the personal attendance of the petitioners is exempted in terms of Section 205 Cr.P.C. subject to such conditions as would be imposed by the learned S.D.J.M., Berhampur. (R.K. Pattanaik) Judge TUDU CRLMC No.1718 of 2021 Page 5 of 5