Orissa High Court
Upendra Swain vs The State Of Odisha And Others .... ... on 17 January, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 234 of 2022
Upendra Swain .... Petitioner
Mr. Raghunath Das Mohapatra, Advocate
-Versus-
The State of Odisha and others .... Opposite Parties
Mr. T.K. Praharaj, SC, OP No.1
None for OP Nos.2 and 3
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
17.01.2023 Order No.
03. 1. Heard Mr. Das Mohapatra, learned counsel for the petitioner and Mr. T.K. Praharaj, learned Standing Counsel for the State-opposite party No.1. None appears for opposite party Nos.2 and 3.
2. Instant petition under Section 482 Cr.P.C. is moved by the petitioner challenging the correctness and judicial propriety of the impugned order dated 7th December, 2021 passed by the learned S.D.J.M., Khurda in G.R. Case No.433 of 2018 arising out of 1CC Case No.239 of 2018 whereby an application under Section 205 Cr.P.C. filed by opposite party No.3 for exemption in terms of Section 205 Cr.P.C. was allowed.
3. Learned counsel for the petitioner submits that such an exemption under Section 205 Cr.P.C. was allowed on the ground that opposite party No.3 stays in Hyderabad at the place of his employment without considering or receiving any such evidence in that regard by simply accepting certain certificates, copies of which Page 1 of 4 are at Annexure-2. It is further submitted that the petitioner is the complainant who submitted an objection as per Anneuxre-3 and disputed the claim of opposite party No.3 that he was or has been at Hyderabad for any training purpose which is so claimed but despite such an objection, it was not entertained and exemption in terms of Section 205 Cr.P.C. was allowed. While contending so, Mr. Das Mohapatra, learned counsel for the petitioner cites a decision of this Court in the case of Kamaljeet Singh Ahluwalia Vrs. State of Orissa reported in 85 (1998) C.L.T. 372 and would submit that discretion for a court while entertaining such a request for personal exemption and represented through a counsel should be considered on judicious ground. As per the learned counsel for the petitioner, all such aspects which are necessary while exempting an accused from personally attending the court under Section 205 Cr.P.C. should have been looked into by the learned court below but merely by accepting some educational certificates, it allowed such exemption which is not permitted in law.
4. Mr. Praharaj, learned Standing Counsel for the State on the other hand submits that the impugned decision is based on discretion of the court below and the same has been exercised considering the fact that opposite party No.3 to be employed outside and at Hyderabad which is revealed from the impugned order i.e. Annexure-4 and under such circumstances, there is no error or illegality committed by it. In Kamaljeet Singh Ahluwalia (supra), this Court had the occasion to examine the matter wherein an application under Section 205 Cr.P.C was disallowed. In other words, challenging rejection of a request for exemption under Section 205 Cr.P.C., the accused had approached this Court in the aforesaid case and therein, the principles in such matters were discussed. In the instant case, as per Mr. Das Mohapatra, learned counsel for the petitioner, an objection was submitted and claim of opposite party No.3 having been employed at Hyderabad was Page 2 of 4 disputed but it was disbelieved. It is claimed that the accused, namely, opposite party No.3 placed his educational qualifications and claimed for exemption and it was erroneously held him to be employed somewhere at Hyderabad and on such ground, exemption under Section 205 Cr.P.C. was allowed and according to Mr. Das Mohapatra, learned counsel for the petitioner, such request ought to have been rejected.
5. It is a disputed question of fact as to if opposite party No.3 is employed at Hyderabad. As per the impugned order under Annexure-4, it is made to reveal that opposite party No.3 is at Hyderabad either being employed or for some training purpose and the said fact has been vehemently disputed by learned counsel for the petitioner. Although it is a discretion of a court to exercise and consider whether to allow exemption in terms of Section 205 Cr.P.C. or not but it is a settled law that such discretion should be exercised in a judicious manner and not at the whim or caprice of the court depending on peculiar facts and circumstances of the case. Considering the serious objection of the petitioner-complainant vis- à-vis place of employment of opposite party No.3, the Court is of the considered view that the matter should be remitted back to the learned court below for re-examination and a fresh decision as to if exemption under Section 205 Cr.P.C. as it was pleaded for by opposite party No.3 should be allowed or not which would serve the purpose and meet the ends of justice and for the said purpose both the parties shall have opportunity to submit evidence in that regard.
6. Accordingly, it is ordered.
7. In the result, the CRLMC stands allowed. Consequently, the impugned order under Annexure-4 passed in G.R. Case No.433 of 2018 arising out of ICC Case No.239 of 2018 pending in the file of learned S.D.J.M., Khurda is hereby set aside with a direction for the court below to re-examine and freshly consider the prayer for Page 3 of 4 exemption under Section 205 Cr.P.C. vis-à-vis- opposite party No.3 which shall be ensured after hearing the parties including the petitioner. As a necessary corollary, the application under Section 205 Cr.P.C. filed by opposite party No.3 is restored to file for its disposal in accordance with law. It is further directed that he entire exercise shall be completed preferably within a fortnight from the date of receipt of a copy of this order.
8. Issue urgent certified copy of this order as per rule.
(R.K. Pattanaik) Judge U.K.Sahoo Page 4 of 4