Orissa High Court
Benjamin Roul vs Sajal Das on 2 May, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 1473 OF 2007
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. No.1065 of 2006
pending on the file of S.D.J.M., Sadar, Cuttack.
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Benjamin Roul ......... Petitioner
-Versus-
Sajal Das ......... Opposite party
For Petitioner: - None
For Opp. Party: - None
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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 & Judgment: 02.05.2017
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S. K. SAHOO, J.None appears on behalf of the petitioner as well as opposite party.
The petitioner Sri Benjamin Roul has filed this application under section 482 of the Criminal Procedure Code challenging the impugned order dated 19.06.2007 passed by the learned Sub-divisional Judicial Magistrate (Sadar), Cuttack in I.C.C. Case No.1065 of 2006 in rejecting the petition under 2 section 205 Cr.P.C. filed by the petitioner to dispense with his personal attendance.
On the basis of the complaint petition filed by the opposite party Sajal Das, cognizance of offence under section 406 of the Indian Penal Code was taken and process was issued against the petitioner by the learned S.D.J.M. (Sadar), Cuttack. The allegation against the petitioner is that while discharging his duty as treasurer, secretary and auditor of Oriya Baptist Church, Cuttack situated at Mission Road, Cuttack in between 1991 to 2000, he had misappropriated a sum of Rs.3,37,358.75 (rupees three lakhs thirty seven thousand three hundred fifty eight and seventy five paisa).
On being summoned, the petitioner filed an application under section 205 of Cr.P.C. before the learned S.D.J.M. (Sadar), Cuttack through his advocate with a prayer to dispense with his personal appearance mainly on the ground that he was aged about 68 years and he is a respectable senior citizen of the Christian Community and he was the retired Oath Commissioner -cum- Stamp Reporter in the Board of Revenue and he was the elected General Secretary of the highest body of the Baptist Church of the State and he was also the elected Deacon of the Cuttack Oriya Baptist Church for last fifteen years. 3
The opposite party filed his objection to the said application and the learned S.D.J.M. (Sadar), Cuttack vide impugned order dated 19.06.2007 has been pleased to hold that the petitioner is residing at Sutahat in Cuttack which is hardly five kilometers away from the Court and he can taken resort to section 317 of Cr.P.C. after his first appearance before the Court. Considering the nature and gravity of the accusation and the manner and circumstances under which the petitioner committed the offence, the petition under section 205 of Cr.P.C. was rejected.
On the basis of the affidavit which was sworn at the time of filing of this application under section 482 Cr.P.C. in the year 2007, the age of the petitioner was indicated to be 68 years and therefore, at present he is 78 years. There is also no dispute that the offence under section 406 of the Indian Penal Code is triable by Magistrate and carrying maximum punishment upto three years or with fine or with both.
Section 205 Cr.P.C. deals with the power of a Magistrate to dispense with personal attendance of accused. Sub-section (1) states that at the time of issuance of summons under section 204 Cr.P.C., if the Magistrate thinks that the personal attendance of the accused is not necessary, he may dispense with such personal attendance and permit him to 4 appear by his pleader. In the case of Kamaljeet Singh Ahluwalia -Vrs.- State of Orissa reported in Vol. 85 (1998) Cuttack Law Times 372, this Court after considering the scope and object of section 205 of Cr.P.C. summarized as follows:-
"(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 turpitude, 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 harassment as in the case of Paradanasini ladies, old, ailing or infirm persons or Government servants or business man, Court should consider their case keeping in view to the totality of all circumstances; and 5
(v) a liberal construction of the provisions of law be made unless the converse is necessary in the interest of justice."
In case of Tilotama -Vrs.- Ranjitarani reported in 1992 (1) Orissa Law Reviews 437, it was held that the Magistrate while exercising his judicial discretion under section 205 of Cr.P.C. should not take too technical a view and reject the prayer for dispensing with personal attendance merely 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.
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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.
Therefore, I am of the view that the grounds of rejection of the application under section 205 Cr.P.C. filed by the petitioner vide impugned order dated 19.06.2007 is not sustainable in the eye of law and accordingly, the same is hereby set aside.
The learned Magistrate shall dispense with the personal appearance of the petitioner on giving an undertaking by him to the satisfaction of the Magistrate that the counsel on his behalf would be present in Court throughout the proceeding and that the petitioner shall have no objection in taking evidence in his absence and further that he would attend the Court as and when his personal attendance is required by the Court.
Accordingly, the CRLMC is disposed of.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 2nd May, 2017/Sisir