Orissa High Court
Bikram Kumar Routray vs State Of Orissa on 29 July, 1994
Equivalent citations: 1994(II)OLR537
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner's application for dispensing with his personal attendance in terms of Section 205 of the Code of Criminal Procedure, 1973 (in short, the 'Code') having been turned down by the learned Judicial Magistrate, first class, Banpur, this application has been filed.
2. The prayer was turned down primarily on the ground that the offence allegedly committed by the petitioner was of a very serious nature and involves moral turpitude. The petitioner's case is that accusations were false and were aimed at lowering down his reputation in the society and in any event the maximum punshment for an offence punishable Under Section 177. Indian Penal Code, 1860 (in short, IPC) is simple imprisonment for a term which any extend to six months, or with fine which may extend to one thousand rupees, or with both.
The learned counsel for State raised a preliminary objection as to the maintainability of the application submitting that the revision is not maintainable. By way of reply the learned counsel for petitioner submitted that technicality should not stand on the way and this Court in exercise of its inherent power Under Section 482 of the Code can prevent abuse of process of law.
3. Section 205 of the Code empowers a Magistrate, whenever he issues a summons, to dispense with personal attendance of accused and permit him to appear by a pleader. Term 'pleader' is defined in Sec, 2 (q) of the Code. According to said definition, 'pleader' when used with reference to any proceeding in any Court means a person authorised by or under any law for the time being in force, to practise in such Court and includes any other person appointed with permission of the Court to act in such proceeding. 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 intial 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. The expression 'if he 6ees reason so to do' clearly indicates that 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 is to be exercised depends upon the attendant circumstances. No sweeping generalisation can be made. Courts should be generous in exempting accused persons from personal appearance. Such appearance is the rule in criminal cases of a serious nature, involving moral turpitude, and punishable with imprisonment for some tenth of time. Court should consider the nature of aberration alleged, prima facie material for acceptance of such allegation, possibility of ma/a fide allegation, prejudice if any likely to be caused if personal attendance is not made. Court has to weigh inconvenience likely to be caused to if he is required to be absent from his vocation, profession, trade, occupation and calling for attendance in Court, against prejudice likely to be caused if he does not appear in Court. Whenever personal attendance is insisted upon, there is undubitably some harassment to the accused and the Courts have to see that this harassment is not out of proportion to the seriousness of the allegation, the severity of possible punishment on conviction, nature of allegations as they stand out prima facie. As indicated above, no hard and fast rule can be laid down, but the Court is expected to exercise its discretion after seeing full picture. Court should normally dispense with personal appearance when a purdanashin woman, high placed public functionary, a busy captain of an industry, person rendering public service is the accused. In Sushila Devi v. Sharada Devi : 1961 (1) Crl. LJ 819 (MP), Jagadguru Sachidanada Shankarabharati Swami of Sri Kudli Sringeri Mutt v. State of Mysore.: AIR 1969 Mysore 95, Raghunath Das and Ors. v. Hari Mohan Pani, 1988 (I) OLR 441, 65(1988) CLT 335 : and K. Narayan Patra v. Gopinath Sahu 1991 (II) OLR 301, (1991) 4 OCR 486, similar view has been expressed.
4. Sub-section (2) of Section 205 empowers a Magistrate to direct personal attendance of the accused, if necessary at a later stage. In such cases where for the disposal of the case, the personal appearance of the accused is not necessary and the pleader undertakes to be present in the Court on behalf of the accused, the Magistrate should be liberal in accepting prayer for dispensing with personal presence of accused. In all trivial and technical cases, the Court should exercise the discretion. Section 206 of the Code, itself shows that in petty cases personal appearance of the accused should not be insisted upon. Law enjoins that an accused should be present during the course of the trial more to safeguard his interests than to cause him inconvenience.
5. The question whether an order refusing to or accepting a prayer in terms of Section 205(1) is an interlocutory order has received attention in various cases. It is clear that even when Magistrate refuses to accept prayer of the accused under Sub-section (1) of Section 205 of the Code, at any stage of trial, his attendance can be dispensed with Under Section 317 of the Code. Similarly even after accepting the prayer under Sub-section (1) of Section 205 Magistrate can direct personal attendance at a subsequent stage under Sub-section (2) of the said section. On a conjoint reading of Sections 205 and 317 it is clear that order passed by a Magistrate on a motion made under Sub-section (1) of Section 205 of the Code, whether he allows or rejects it, is an interlocutory order. Similar view was expressed by this Court in Kama Prasad Rout and Ors. etc. v. Madan Mohan Das : 1990 (I) OLR 216, So a revision is not maintainable against an order mads under Sub sec. (1) of Section 205. But in an appropriate case, inherent power Under Section 482 of the Code can be exercised to prevent abuse of process of the Court or secure ends of justice.
6. Undisputedly the petitioner is a Government servant and as a busy functionary in the postal department is required to attend various official works. The maximum sentence in respect of the accusations is six months' simple imprisonment. Learned counsel for State could not show any circumstance as to how any prejudice is likely to be caused, if the petitioner does not appear personally. Section 205 itself mandates that where Court has allowed an accused to appear by a pleader, it may at any subsequent stage order for personal appearance of accused when it is deemed necessary or desirable. The order refusing to accept the prayer for representation is set aside. However, the petitioner shall appear as and when required by the learned Magistrate at any subsequent stage. The petitioner shall appear before the learned Magistrate on the next date fixed when further orders can be passed by the learned Magistrate as regards his further attendence, if any. It is made clear that personal attendance shall not be insisted unless it is absolutely necessary for early disposal of the proceeding, or any other purpose.
The application is accordingly disposed of.