Orissa High Court
Chintamani Das And Another vs State Of Orissa And Another on 2 December, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL REVISION NO. 866 of 2016
From the judgment and order dated 20.10.2016 of the S.D.J.M.,
Bhadrak in I.C.C. Case No.497/2015.
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Chintamani Das
and another ......... Petitioners
-Versus-
State of Orissa
and another ......... Opp. parties
For Petitioners: - Mr. Prasant Kumar Sahoo
U.C. Dora, S. P. Moharana
For Opp. Party No.1: - Mr. Deepak Kumar Pani
Addl. Standing Counsel
For Opp. Party No.2: - Mr. Pradeep Kumar Das
Debasis Sahoo
Ashok Kumar Patra
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Order- 02.12.2016
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S. K. Sahoo, J.Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the opposite party no.2.
2This revision petition has been filed by the petitioners for setting aside the impugned order dated 20.10.2016 passed in I.C.C. Case No.497 of 2015 by the learned S.D.J.M., Bhadrak in rejecting the petition under section 205 of Cr.P.C. filed by the petitioners to dispense with their personal attendance.
On the basis of the complaint petition filed by the opposite party No.2, I.C.C. Case No.254 of 2015 was registered on 24.03.2015 and the matter was referred to Bhadrak (Rural) Police Station under section 156(3) of the Cr.P.C. by the learned S.D.J.M., Bhadrak and accordingly, Bhadrak (Rural) P.S. Case No.300 of 2015 was registered under sections 452/323/294/354/506/34 of the Indian Penal Code and after completion of investigation, final report was submitted and thereafter, the opposite party No.2 filed a protest petition which was registered as I.C.C. No.497 of 2015 and after recording the initial statement of the complainant- opposite party no.2 and after conducting necessary inquiry under section 202 of Cr.P.C., cognizance of offences under sections 452/323/294/354/506/34 of the Indian Penal Code was taken.
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It is contended by the learned counsel for the petitioners that the petitioner No.2 is an Advocate of Chandbali Court and petitioner No.2 is serving in the H.D.F.C. Bank Ltd as Financial Clerk and it is very difficult on their part to appear before the Court and since the case arises out of Civil dispute and the offences are triable by Magistrate and the petitioners were ready and willing to attend the Court as and when required, the learned Magistrate was not justified in rejecting the petition under section 205 of Cr.P.C. and therefore, the impugned order should be set aside and the application filed by the petitioners may be allowed.
Learned counsel for the complainant-opposite party No.2 opposed the prayer made by the learned counsel for the petitioners.
Law is well settled that the power under section 205 of the Cr.P.C. has to be exercised in regard to the circumstances of the case, condition of the accused and the necessity for his personal attendance etc. The discretion vested in the Magistrate should be exercised according to rules of reasons and justice and not in an arbitrary manner. In the criminal cases which are not of serious in nature, the Magistrate should be generous in exempting the accused from 4 personal attendance. The Court is required to consider in such cases the inconvenience likely to be caused to the accused if he is required to remain absent from his profession, occupation and trade. If no useful purpose would be served in insisting upon the personal appearance and the progress of the trial would not be hampered in any manner due to such absence, the personal appearance of the accused shall not be insisted upon.
Considering the submissions made by the learned counsel for the respective parties, taking into account the nature of the offences and the fact that the offences are triable by Magistrate and considering the status of the two petitioners, I am inclined to direct the learned S.D.J.M., Bhadrak to dispense with the personal attendance of the petitioners.
Accordingly, the personal attendance of the petitioners before learned S.D.J.M., Bhadrak is dispensed with and they are permitted to appear by their advocates subject to filing of an undertaking by the petitioners before the learned Magistrate that they shall appear in person as and when it would be required for the purpose of the case. 5
Accordingly, the CRLREV is disposed of.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 02 December, 2016/pravakar