Orissa High Court
Application Under Section 482 Of The ... vs State Of Odisha (Vig.) ..... Opposite ... on 8 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 918 of 2025
Application under Section 482 of the Code of Criminal Procedure,
read with Section 528 of the Bharatiya Nagarika Suraksha Sanhita
(BNSS), 2023 challenging the rejection of the application of the petitioner
under Section - 205 Cr.P.C.
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Satyabrata Rout ..... Petitioner
-versus-
State of Odisha (Vig.) ..... Opposite Party
For Petitioner : Mr. J.P. Patra, Advocate
For Opp. Party : Mr. Srimanta Das,
Senior Standing Counsel (Vig.)
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CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
08.05.2025 Savitri Ratho, J. This CRLMC has been filed challenging the order dated 20.01.2025 passed by the learned Special Judge (Vigilance), Keonjhar in VGR Case No. 05 of 2013, rejecting the application of the petitioner filed under Section 205 of the Code of Criminal Procedure (in short "Cr.P.C.") for dispensing with his personal attendance.
2. F.I.R. in the case had been filed on 27.07.2013. After completion of investigation, charge has been framed and trial CRLMC No.918 of 2025 Page 1 of 20 against the petitioner and twenty eight others has commenced for the offences under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 (in short "P.C. Act, 1988) and Sections- 420/468/409/379/120-B of the Indian Penal Code (in short "I.P.C.").
3. The petitioner had filed an application U/s.205 of Cr.P.C. along with medical documents, to dispense with his personal attendance and permit him to appear through his counsel on the ground that after being released on bail, he has not violated any of the conditions imposed in the bail order and as he was a chronic diabetic and was suffering from heart ailment, for which he was under treatment, it was difficult for him to personally appear in the court on each date.
4. The learned trial court rejected the application on 20.01.2025, in view of the seriousness of the allegations against him and as a condition had been imposed by the High Court while granting him bail that he should personally appear in the court on each date of posting of the case.
SUBMISSIONS
5. Mr. J.P. Patra, learned counsel for the petitioner submits that the petitioner has been released on bail pursuant to order dated CRLMC No.918 of 2025 Page 2 of 20 18.08.2015 passed by this Court in BLAPL No. 14292 of 2014. He submits that the petitioner is a retired Government servant and is suffering from heart ailment. The medical prescriptions have been annexed as Annexure-2 series. His further submission is that in respect of two other co-accused persons, who stand on similar footing as the petitioner as they have also retired from Government service, and pursuant to orders of this Court in CRLREV No. 702 of 2014 and CRLMC No. 38 of 2025, their applications under Section 205 Cr.P.C. have been allowed. As only 55 persons out 157 chargesheeted witnesses have been examined so far in the trial, the trial is not likely to be completed in the near future. So the application of the petitioner should have been allowed. He finally submits that the petitioner is prepared to furnish an undertaking before the learned trial court that he will not claim any prejudice if evidence is recorded in his absence and that he will personally appear before the trial Court as and when directed to do so by the learned trial Court and that his counsel will be present on all other dates.
6. Mr. Srimanta Das, learned Senior Standing Counsel does not dispute the submission that the applications of two other accused under Section 205 Cr.P.C have been allowed, but submits that in CRLMC No.918 of 2025 Page 3 of 20 view of the seriousness of the charges against the petitioner and the strong possibility that if he does not appear physically in the Court, the trial which has been pending since twelve years may be further delayed.
PETITIONS FILED BY CO ACCUSED
7. In Criminal Revision No. 702 of 2014, filed by co accused Jagadish Mishra, considering the age and precarious health condition of the petitioner therein, it had been directed by this Court by order dated 14.08.2024 that if the petitioner moved any application under Section 205 of Cr. P.C., the same shall also be considered sympathetically. He is not a retired Government servant.
8. In CRLMC No. 38 of 2025 filed by co accused Bimal Prasanna Acharya, considering the advice of the Doctor that he should not travel long distances as he was suffering from various ailments, this Court on order dated 08.01.2025 granted him liberty to move fresh application under Section 205 of the Cr. P.C. for exemption from the personal appearance before the court below and for its consideration afresh and during hearing of the petition with a further direction that till his application was decided. he CRLMC No.918 of 2025 Page 4 of 20 would be represented by his counsel on each date of hearing on moving application under Section 317 of the Cr. Р.С.
9. It is not disputed that the applications of these two co-accused under Section - 205 Cr.P.C have subsequently been allowed by the learned trial court.
STATUTORY PROVISIONS
10. Sections- 205, 317 and 273 of the Cr.P.C and Section 22 of the P.C. Act which are relevant for deciding this application are extracted below :-
Code of Criminal Procedure Section - 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."
Section - 273. Evidence to be taken in presence of accused. Except as otherwise expressly provided, all CRLMC No.918 of 2025 Page 5 of 20 evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.
Explanation.- In this section," accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code. Section 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, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
(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.CRLMC No.918 of 2025 Page 6 of 20
Prevention of Corruption Act Section 22. The Code of Criminal Procedure, 1973 to apply subject to certain modifications.
- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall in their application to any proceeding in relation to an offence punishable under this Act have effect as if,
(a)in sub-section (1) of section 243, for the words The accused shall then be called upon, the words The accused shall then be required to give in writing at once or within such time as the Court may allow, a list of persons (if any) whom he proposes to examine as his witnesses and of the documents (if any) on which he proposes to rely and he shall then be called upon had been substituted;
(b)in sub-section (2) of section 309, after the third proviso, the following proviso had been inserted, namely:Provided also that the proceeding shall not be adjourned or postponed merely on the ground that an application under section 397 had been made by the party to the proceeding.;
(c)after sub-section (2) of section 317, the following sub-section had been inserted, namely:
(3)Notwithstanding anything contained in sub-section (1) or sub-section (2), the Judge may, if he thinks fit and for reasons to be recorded by him, proceed with enquiry or trial in the absence of the accused or his pleader and CRLMC No.918 of 2025 Page 7 of 20 record the evidence of any witness subject to the right of the accused to recall the witness for cross-
examination.";
(d )in sub-section (1) of section 397, before the Explanation, the following proviso had been inserted, namely :-
"Provided that where the powers under this section are exercised by a Court on an application made by a party to such proceedings, the Court shall not ordinarily call for the record of the proceedings,
(a)without giving the other party an opportunity of showing cause why the record should not be called for; or
(b)if it is satisfied that an examination of the record of the proceedings may be made from the certified copies".
11. Section 205 (1) of the Cr.P.C. provides for dispensing with the personal appearance of the accused by the Magistrate and the Magistrate has the power to direct personal attendance of the accused if necessary at a later stage. Section 273 of the Cr.P.C. provides that evidence shall normally be recorded in the presence of the accused or in the presence of his counsel if his personal attendance has been dispensed with. Under Section 317 of the Cr.P.C., the Magistrate or the Judge has the power to allow the CRLMC No.918 of 2025 Page 8 of 20 accused to appear through his counsel at any stage and continue the inquiry or trial if he is satisfied that the personal attendance of the accused is not necessary in the interest of justice or the accused is disturbing the proceedings in the Court. This section also empowers the Magistrate or the Judge, if the accused is not represented by a counsel and his personal attendance is necessary, to adjourn the case or order that the case of the accused be taken up for trial separately or direct the personal attendance of the accused. Section 22 (c) of the P.C. Act empowers the Court to record evidence of any witness in the absence of the accused and his counsel, subject to the right of the accused to recall the witness for cross- examination.
JUDICIAL PRONOUNCEMENTS
12. In the case of M/s Bhaskar Industries Ltd. vs M/s Bhiwani Denim & Apparels Ltd. and others : (2001) 7 SCC 401, the accused was alleged of having committed offence under the Negotiable Instruments Act.The Supreme Court has held as follows :-
"14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken CRLMC No.918 of 2025 Page 9 of 20 but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case.
15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such CRLMC No.918 of 2025 Page 10 of 20 an accused of the great hardships, without causing prejudice to the prosecution proceedings."
"17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.
(emphasis supplied)
18. A question could legitimately be asked -- what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not CRLMC No.918 of 2025 Page 11 of 20 appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care of such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.
19. The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a CRLMC No.918 of 2025 Page 12 of 20 Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."
In the case of Puneet Dalmia vs. C.B.I.: (2020) 12 SCC 695 : (2020) 4 SCC (Cri) 466, the accused was facing trial for commission of offences punishable under Sections 120 B read with Sections - 420 and 409 of the IPC and Sections - 9, 12, 13(2) read with Sections 13(1) (c) and (d) of the P.C. Act. He had approached the Supreme Court as his application under Section - 205 Cr.P.C had been rejected by the trial court and confirmed by the High Court. The Supreme Court referred to its earlier decisions in Bhaskar Industries (supra) and Rameshwar Yadav vs State of Bihar : (2018) 4 SCC 608, and while allowing the application has held as follows :-
"6. Heard learned Counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the appellant is required to appear before the learned Trial Court on every Friday and the appellant as such is appearing before the learned Trial Court on each and every Friday since 2013. Nothing is on record that at any point of time the appellant has CRLMC No.918 of 2025 Page 13 of 20 tried to delay the trial. The appellant is represented through his counsel. The appellant is a permanent resident of Delhi. He is the Director on the Boards of several companies. The distance between Delhi and Hyderabad is approximately 1500 kms. Therefore, the appellant sought for exemption from personal appearance before the learned Trial Court on each and every Friday and submitted the application under Section 205 Cr.P.C. and submitted that on all dates of adjournments, his counsel Sri Bharadwaj Reddy shall appear and no adjournment shall be asked for on his behalf. In the cases of Bhaskar Industries Ltd. (supra) and Rameshwar Yadav (supra), this Court had the occasion to consider the scope and ambit of the application under Section 205 Code of Criminal Procedure. In the case of Bhaskar Industries Ltd. (supra), this Court has observed that if a Court is satisfied that in the interest of justice the personal attendance of an accused before it need not be insisted on, then the court has the power to dispense with the attendance of the accused. It is further observed by this Court in the aforesaid decision that if a court feels that insisting on the personal attendance of an accused in a peculiar case would be too harsh on account of a variety of reasons, the court can grant relief to such an accused in the matter of facing the prosecution proceedings. It is observed and held by this Court in the aforesaid decision that the normal rule is that the CRLMC No.918 of 2025 Page 14 of 20 evidence shall be taken in the presence of the accused.
However, even in the absence of the accused, such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court."....
.... "It is true that in the aforesaid two cases before this Court, the offences alleged were less serious offences than alleged in the present case. However, the principles for grant of exemption as observed by this Court in the case of Bhaskar Industries Ltd. (supra) can be made applicable to the facts of the case on hand also and the appellant can be granted the exemption on certain conditions and on filing an undertaking by the appellant, by which the interest of justice can be protected and grant of exemption may not ultimately affect the conclusion of the trial at the earliest. At this stage, it is required to be noted that nothing is on record that, at any point of time, any effort has been made by the appellant to stall/delay the trial. At this stage, it is required to be noted that in case of other two co-- accused in cases arising of the same FIR, the applications for exemption on the very same grounds have been allowed - one by the High Court and another by the learned Trial Court.
7. In view of the above and for the reasons stated above and considering the facts and circumstances of CRLMC No.918 of 2025 Page 15 of 20 the case, the present appeal is allowed. The impugned Judgment and order passed by the High Court as well as that of the learned Trial Court rejecting the application submitted by the appellant under Section 205 Cr.P.C. are hereby quashed and set aside and consequently the application submitted by the appellant to dispense with his appearance before the learned Trial Court on all dates of adjournments and permitting his counsel Sri Bharadwaj Reddy to appear on his behalf is herby allowed on the following conditions:
(1) That the appellant shall give an undertaking to the learned Trial Court that he would not dispute his identity in the case and that Sri Bharadwaj Reddy advocate who is permitted to represent the appellant, would appear before the learned Trial Court on his behalf on each and every date of hearing and that he shall not object recording of the evidence in his absence and that no adjournment shall be asked for on behalf of the appellant and/or his advocate Sri Bharadwaj Reddy; (2) That the appellant shall appear before the learned Trial Court for the purpose of framing of the charges and also on other hearing dates whenever the learned Trial Court insists for his appearance;
(3) If there is any failure on the part of the advocate Sri Bharadwaj Reddy, who is to represent the appellant, either to appear before the learned Trial Court on each adjournment and/or any adjournment is sought on behalf of the appellant and/or if the learned Trial Court CRLMC No.918 of 2025 Page 16 of 20 is of the opinion that the appellant and/or his advocate is trying to delay the trial, in that case, it would be open for the learned Trial Court to exercise its powers under Section 205 (2) Cr.P.C.and direct the appearance of the appellant on each and every date of adjournment."
In the case of (Pradip Kumar Mahala v. State of Odisha (Vigilance): 2023 (II) ILR CUT, relying on the decisions in Ms. Bhaskar Industries ( supra ) and Puneet Dalmia ( supra), this Court had allowed the application of the petitioner under Section 205 of the Cr.P.C., who was accused of committing offence under the PC Act.
DISCUSSION AND CONCLUSION
13. From a reading of Sections 205, 317, 273 of the Cr.P.C. and Section 22 of the P.C. Act, it is apparent that normally the trial has to be conducted in the presence of the accused but this is not mandatory. The Court has the power to record evidence in the absence of the accused and his counsel, after recording reasons and subject to the right of the accused to recall such witness for cross- examination. The Court has the power to dispense with the personal attendance of the accused and if thereafter, he is not represented by CRLMC No.918 of 2025 Page 17 of 20 a counsel, to adjourn the matter and direct for his personal attendance or order for his case to be taken up or tried separately.
14. It is therefore apparent that an accused can be permitted to be represented through his counsel in appropriate cases even in cases like the present case, where insisting on personal attendance will result in hardship to the accused or will delay the trial or is against public interest. Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the Court feels that his presence necessary for effective disposal of the case. If an accused can be represented by a counsel and the trial can proceed in absence of the accused, presence of the accused necessary should not be insisted upon. As held in the case of Bhaskar Industries (supra), the concern of the criminal court should primarily be the administration of criminal justice and for that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court should be to enable the court to proceed with the trial. If the progress of the trial can be achieved in the absence of the accused, personal attendance should not be insisted upon, especially when the accused are ladies, public functionaries. Direction for personal appearance of an accused is CRLMC No.918 of 2025 Page 18 of 20 subject to any order which may be passed by the Court under Sections 205 (2) and 317 (2) of Cr.P.C. for his/her personal attendance and enforce such attendance.
15. The petitioner claims to be 60 years old and it has been stated in the cause title that he is a resident of Bhadrak District. It has not been disputed that he is suffering from heart ailments and is a diabetic for which he is under treatment.
16. The order dated 20.01.2025 passed by the learned Special Judge (Vigilance), Keonjhar in VGR Case No. 05 of 2013 rejecting the application of the petitioner under Section 205 Cr.PC is set side.
17. In view of the provisions of Section 205 and 373 of the Cr.P.C. and Section 22 (c) of the P.C. Act, the decisions referred to above and the fact that the petitioner has been granted bail by this Court and two other co-accused have been granted the benefit under Section 205 Cr.P.C, I am satisfied that even though the allegations against the petitioner are serious and involves an offence of moral turpitude, in view of the health condition of the petitioner, his personal attendance during the trial can be dispensed with by CRLMC No.918 of 2025 Page 19 of 20 imposing suitable conditions and obtaining appropriate undertaking from him.
18. It is directed that if a fresh application under Section 205 Cr.P.C along with appropriate is filed by the petitioner by 17.05.2025, the same shall be considered and disposed of keeping in mind the above discussion. It goes without saying that the learned Special Judge shall impose such conditions as he may deem fit and proper so that trial is not delayed, including filing of appropriate undertaking by the petitioner.
19. It is made clear that if at any time, the trial court is of the view that the petitioner and / or his counsel is/ are trying to delay the trial, it would be open for the learned Trial Court to exercise its powers under Section 205 (2) Cr.P.C. and direct for the appearance of the petitioner on each and every date of adjournment.
20. The CRLMC is accordingly disposed of.
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(Savitri Ratho) Judge Signature Not Verified Digitally Signed Orissa High Court, Cuttack. Signed by: PUSPANJALI MOHAPATRA The 8th May, 2025/puspa Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 09-May-2025 12:32:25 CRLMC No.918 of 2025 Page 20 of 20