Orissa High Court
Dasadri Murali Krishna & vs State Of Odisha (Vig.) .... Opp. Party on 20 August, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 509 of 2025
Dasadri Murali Krishna & .... Petitioners
others
Mr. S. Das, Advocate
-versus-
State of Odisha (Vig.) .... Opp. Party
Mr. S. Das, S.C.(Vigilance)
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 20.08.2025 01. 1. Heard learned counsel for the Parties.
2. The legality, propriety and correctness of the order dated 22.04.2025 passed by the learned Special Judge, Vigilance, Bargarh in CTR Case No.17/49 of 2024 has been called in question in this Revision, wherein the learned court having considered the application of the Petitioners under Section 228 of the BNSS, 2023 (205 of the Cr.P.C, 1973) pleased to place to reject the same.
3. The background facts of the case are that on the basis of the report dated 18.05.2016 of the Deputy Superintendent of Police, Vigilance, Bargarh Unit, the FIR in connection with Sambalpur Vigilance P.S. Case No.44 of 2016 was registered against the Petitioners. During the course of the investigation, as a prima facie case was made out, the charge-sheet was submitted implicating the Petitioners in the offence under Section 13(2), r/w. Section 13(1)(d) of the P.C. Act and under Section 120(B) of the IPC. On the summons being issued against the Petitioners for their appearance in the Court, the Petitioners moved an application under Section 228 of the BNSS (205 of the Cr.P.C) praying to dispense with their personal appearance before the court during trial. It is the contention of the Petitioners that they are professionals and currently holding important positions in organisations for which the Petitioners travel a lot for business purposes. While Petitioner No.1 claims to be the Chairman/Director/Additional Director/Partner of Vikash Educational Institution, Bargarh, Vikash Residential Institution Pvt. Ltd, Bargarh, Vikash Green Infratech Pvt. Ltd, Bargarh, Dasari Murli Krishna Foundation, Bargarh, Vikash Eco Resort Pvt. Ltd, Cuttack, Vikash DMK Residential Institution, Chhattisgarh, Vikash Health Care Pvt. Ltd, Cuttack; Petitioner No.2 is the Trustee/Director of Krishna Page 2 of 10 Vikash Educational Trust, Bargarh & Vikash DMK Residential Institution Pvt. Ltd, Chhattisgarh; Petitioner No.3 is the Trustee of Kalahandi Vikash Charitable Trust, Bhawanipatna, while Petitioner No.4 was residing at her parental house at Bargarh at the time of initiation of this case but subsequently got married and presently residing with her husband at Hyderabad and she is also appointed and working as a Senior Resident at AIIMS, Telengana. As far as Petitioner No.5 is concerned, he is a partner of M/s. Vijay Industries, Bargarh and Petitioner No.6 is the Partner/Trustee of Vikash EDU Services, Bargarh, Kalahandi Vikash Charitable Trust, Bhawanipatna and M/S Vijay Enterprises, Bargarh.
Amongst the Petitioners, the Petitioner Nos.2, 3, 4, and 5 are female and they intended to be represented through their lawyer. The learned court turned down the prayer of the Petitioners on extraneous grounds without the application of judicial mind and did not even pass a reasoned order while exercising the discretion in rejecting the prayer of the Petitioners.
4. The learned counsel for the State (Vigilance) on the other hand, vehemently opposed the contentions of the learned counsel for the Petitioners and stated that the Petitioners belong to the district of Bargarh in Odisha and would face no Page 3 of 10 inconvenience in attending the court in person. He further contended that the Petitioners have never appeared before the court till date.
5. Section 228 of the BNSS, 2023 (205 of the Cr.P.C, 1973) reads as follows:-
"228. 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 advocate.
(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."
6. This Court has taken consistent view regarding the scope of Section 205 of the Code of Criminal Procedure. In Kamaljeet Singh Ahluwalia Vs. State of Orissa, reported in 1998 CriLJ 2191 = 85 (1998) CLT 372 the Court held as under:
"8. On a perusal of the case law referred to above it appears that this Court has taken a consistent view regarding the scope of section 205 of the Code. It is readable from the aforesaid decisions that:--Page 4 of 10
(i) personal appearance of the accused in a criminal trial is the normal rule and exempting from personal appearance is an exception which can be resorted to in suitable cases by due exercise of judicial discretion;
(ii) when the alleged offence(s) involves moral torpitude, relates to grievous offences or prescribes considerable length of substantive sentences, the Court exercising the discretion shall take the total fact and circumstances into consideration and through a speaking and reasonable order exercise the discretion judiciously,
(iii) no hard and fast rule or a strait jacket formula can be prescribed as to where exemption shall be granted and when it is to be refused. It all depends upon the facts and attendant circumstances and the wisdom of the Court;
(iv) when there is no prospect of quick disposal of the case, no question involves identity of the accused, direction for personal appearance may cause harrassment as in the case of Paradanasini ladies, old, ailing or infirm persons or goverment servants or business man, Court should consider their case keeping in view to the totality of all circumstances; and
(v) a liberal construction of the provisions of law be made unless the converse is necessary in the interest of justice."
7. In Tilotama Vs. Ranjitarani, reported in 1992 (I) OLR 437, it has been held that the Magistrate while exercising his judicial discretion under Section 205, Cr.P.C. should not take too technical approach and reject the prayer for dispensing with personal attendance merely Page 5 of 10 because the plea taken by the accused in the petition is not satisfactorily established. The Magistrate should concentrate more on the question whether personal attendance of the accused is necessary for the purpose of the case. It is further held that in case of Pardanashin women, Courts have consistently taken the view that although there is no exception in law merely because the accused is a Pardanashin woman, discretion must be reasonably exercised by consideration of social status and custom and also the nature of the offence; ordinarily exemption should be granted unless a strong prima facie case is made out against it. The discretion should be liberally exercised in view of general feeling which exists against public appearance of women and the fact that procedural law is frequently abused to gratify personal malice.
8. In the case of Benjamin Roul Vs. Sajal Das, reported in 2017 SCC OnLine Ori 303, in the context of cognizance of offence under Section 406 of the Indian Penal Code, this Court setting aside the rejection of the application under Section 205 of the Cr.P.C. observed as follows:
Page 6 of 10"9. The learned Magistrate has neither taken the social status of the petitioner, his age nor the necessity of personal attendance of the petitioner. Apart from the fact that the offence is triable by Magistrate, considering the nature of accusation in the case and the age of the petitioner, I am of the view that the learned Magistrate has not exercised the judicial discretion properly and he should not have mechanically rejected the application under Section 205 Cr.P.C. filed by the petitioner."
9. It is further held by this Court in it's decision, in the matter of Rajendra Kumar Patel Vs. State Of Odisha, reported in 2023 LawSuit(Ori) 244, as below:
"5.17. When legal position is analysed vis-à-vis scope of Section 205, Cr.P.C., it is culled out as follows i. The petition under Section 205, Cr.P.C. must receive liberal consideration; ii. The petitioner would not dispute the identity as particular accused in the case;
iii. A counsel on his behalf will be present on all the dates of posting;
iv. The accused has no objection in taking evidence in his absence;
v. The accused would make himself available on any date when his presence is needed in the case; vi. Provisions of Cr.P.C. do not restrict a Magistrate from fixing up conditions while granting an application for dispensing with personal attendance;Page 7 of 10
vii. In certain cases, the courts have insisted on deposit of the amount which is subject-matter of the complaint in order to grant relief of personal attendance under Section 205, Cr.P.C; viii. The process of the Courts should not be used for harassment of litigants and the appearance of the parties before the Court must be insisted upon only if it becomes absolutely necessary for some purpose;
ix. The purpose of the criminal court should be administration of justice and progress of the case; and insistence upon appearance of the accused in all cases ought to be avoided.
x. Exception has been discussed in Cardinal Mar George Alencherry Vrs. Joshi Varghese and Others, 2022 SCC OnLine Ker 5737"
10. Now, coming to the facts of this case, the offences alleged against the petitioner include those under Sections 13(2) r/w Section 13(1)(d) of the PC Act and under Section 120(B) IPC. Generally speaking, unless there are exceptional grounds, the exemption from personal appearance for the first appearance cannot be granted.
As discussed above, Petitioners include four females. The offences alleged against the Petitioners are primarily based on documentary evidence and the physical presence of the Petitioners would no way help the Page 8 of 10 prosecution to improve their case. There is also no material on record suggesting dispute with regard to the identity of the accused persons. It is seen from the impugned order that the learned court while exercising the discretion in rejecting the prayer, did not take into consideration the social status, age and necessity for personal appearance of the Petitioners, while appreciating the cause. Normally, personal presence of the accused persons more so in cases of present nature need not be insisted upon unless it is indispensable for adjudication in order to confront any document. Conversely, the court is very much empowered to direct the personal appearance of the accused as and when it so desires and the accused persons are to abide by it. The learned court has not assigned any specific reason insisting the physical presence of the Petitioners for which the privilege under Section 228 of the BNSS (205 of the Cr.P.C) could not be extended.
11. In the above circumstances and the discussions made as above and further resorting to various decisions in the matter of Sri Rameshwar Yadav Vs. State of Bihar reported in 2018 (4) SCC 608, Benjamin Roul Vs. Sajal Das reported in 2017 (2) ILR (Cut) 964 and Banamali Pradhan Vs. State of Odisha reported in 2019 74 OCR 232, this Page 9 of 10 Court finds the impugned order to be not in consonance with the facts and law, and deserves to be quashed. Accordingly, the impugned order dated 22.04.2025 stands quashed.
12. The Petitioners are directed to appear once in person before the learned trial court on 11.09.2025. Upon such appearance of the Petitioners, the learned court shall pass appropriate order, dispensing with the subsequent appearance of the Petitioners, allowing them to be represented through their lawyer under Section 228 of the BNSS (205 of the Cr.P.C) with further direction that as and when the court would require the presence of the Petitioners, they shall appear in person.
13. Accordingly, the CRLREV is allowed.
(Chittaranjan Dash) Judge Sarbani Page 10 of 10 Signature Not Verified Digitally Signed Signed by: SARBANI DASH Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Aug-2025 15:22:49