Orissa High Court
Ramesh Chandra Lath vs State Of Orissa on 8 November, 1991
Equivalent citations: 1992CRILJ2263
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. Order dated 23-7-1991 passed by learned Sub-Divisional Judicial Magistrate, Deogarh (in short the 'SDJM'), is subject-matter of challenge in these two applications.
2. The order consists of two parts. By a petition, petitioner challenged cognizance taken, for alleged commission of offences under Sections 24 and 29 of the Contract Labour (Regulation and Abolition) Act, 1970 (in short the 'Act'). The petitioner's stand is that cognizance was taken beyond the prescribed period of limitation. Reference was made to Section 27 of the Act. Time prescribed for taking cognizance of alleged offences is three months. Prayer was rejected by learned SDJM, on the ground that the proviso to Section 27 applies to the facts of the case. According to him, there was service of notice on the accused-petitioner whereby certain defects pointed out were directed to be rectified. He construed it to be a written order and held that offence related to non-compliance of a written order, and therefore, period of limitation is six months. By the latter part of his order, he rejected the prayer to dispense with personal attendance of petitioner.
3. Learned counsel for petitioner, has assailed both parts of the order. So far as question of limitation is concerned, it is submitted that proviso to Section 27 applies only where offence related to disobediency of a written order. According to him, even if it is accepted that there was a notice, the same should not be considered to be a written order, the disobedience of which would make proviso to Section 27 applicable. The notice, it was urged only contained requests for rectification of alleged defects.
4. At this stage, I am not inclined to enter into controversy whether notice in fact, was a written order, disobedience of which made the proviso to Section 27 applicable. It is open to the petitioner to contend during trial that the proviso had no application and that offence alleged did not relate to disobedience of a written order. My non-interference with the impugned order shall not be construed to be expression of any opinion on the merits and/or to be a bar for re-consideration of this aspect during trial. Learned SDJM shall do well to consider whether notice on which he placed reliance, constituted a written order. Section 27 prescribes two periods of limitation and separate categories of offences. Where the offence relates to disobedience of a written order, prescribed period of limitation is six months and in residual cases, it is three months. Chapter VI of the Act consists of Sections 22 to 27, deals with penalties and procedure. Section 29 is a part of Chapter VII and relates to registers and other records to be maintained. Section 22(1) relates to obstruction of an inspector in the discharge of his duties, and refusal or wilful neglect to afford the inspector reasonable facility for making inspection, examination, inquiry or investigation authorised by or under the Act. Section 22(2) relates to wilful refusal to produce on demand of an inspector register or other document kept in pursuance of the Act, and prevention of a person from either appearing before or being examined by an inspector acting in pursuance of his duties. Section 23 relates to contravention of provisions regarding employment of contract labour. Section 24 deals with contravention of provisions of Act or of any rules made thereunder for which no penalty is elsewhere provided.
5. So far as Criminal Misc. Case No. 1025 of 1991 is concerned, I find that petitioner had moved for dispensing with personal attendance. Learned SDJM did not accept the prayer with the observation that grounds indicated were not reasonable. Personal attendance of a party should not be insisted upon unless his presence is absolutely necessary in the proceeding. On the date fixed, learned SDJM was considering the acceptability of prayer relating to period of limitation. On that day, presence of petitioner was not absolutely necessary. Without considering that aspect, learned SDJM seems to have rejected prayer for dispensing with personal attendance of petitioner, Section 205 empowers a Magistrate whenever he issues a summons to dispense with personal attendance of accused and permit him to appear by a Pleader. Both Sections 205(1) and 273 of the Code provide for exemption of an accused from personal attendance; but they refer to different stages of the proceeding. While Section 205 deals with initial appearance of accused before the Magistrate who issues summons. Section 273 deals with presence of accused at trial and empowers the Presiding Officer to dispense with personal attendance of accused at trial. As words 'if he sees reason so to do' indicate, power conferred by Section 205(1) is discretionary, and no hard and fast rule can be laid down. The question as to when such discretion has to be exercised, has to be considered after giving due consideration in the attendant circumstances. No sweeping generalisation can be made. Court should be generous in exempting accused persons from personal appearance. Similar view was expressed by me in K. Narayan Patra v. Gopinath Sahu, 1991 (11) OLR 301.
6. I, therefore, set aside part of the order relating to rejection of the prayer relating to dispensation of personal attendance. Learned SDJM shall not insist upon personal attendance of the petitioner except when his presence is indispensable for the purpose of trial.
Criminal Misc. cases are disposed of accordingly.