Bhramarbar Subudhi vs Sayed Ajhar Alli

N. Prusty, J.—The petitioners, who were accused persons in ICC No. 2303 of 2003 in the Court of the learned S.D.J.M., Bhubaneswar, have filed this application challenging the order dated 18.12.2005 whereby their petition to extend the benefit of Section 205 Cr.P.C. for dispensing with their personal appearance was rejected and they were directed to appear physically before the Court failing which coercive measure shall be take for causing their appearance.

The plea of the petitioners for dispensing with their personal appearance was that petitioner No. 1 is a sick person having cardiac problem, petitioner No. 2 is prosecuting his higher studies and petitioner No. 3 is an Advocate of Bhubaneswar Bar and there is no likelihood on their part not to appear in the Court on the date fixed by the Court; they are respected persons of the locality and there is no chance of their absconding at any stage of the trial.

The petitioner''s case in short is that the complainant''s father had a shop over Plot No. 1829, Khata No. 1669, Gajapati Nagar. Area 40'' x 16'' which was in the possession of the accused persons (petitioners). Petitioner No. 1 usually takes money from the father of the complainant and never refunded the same.

Accordingly, petitioner No. 1 persuaded the complainant to purchase the plot misleading him on the ground that he is the owner of the land. In good faith, the complainant and his father gave consideration money of Rs. 65,000/- to petitioner No. 1 and in return petitioner No. 1 executed an agreement to sell the aforementioned plot and handed over the possession of the property to the complainant. Even though petitioner No. 1 did not have any title over the property, in connivance with petitioners 2 and 3 he executed the agreement on 10.8.2003 in order to cheat the complainant. When the complainant started construction over the plot on 10.9.2003, some outsiders and Gunda type of persons quarrelled with him and stopped the construction work. The complainant asked petitioner No. 1 to return his consideration money. All the three petitioners suddenly rushed towards the complainant and abused him in filthy languages as well as threatened him to take away his life. Hence the complainant filed complaint petition (ICC No. 2303 of 2003) against the petitioners for committing an offence punishable under Sections 420, 506 and 34 I PC in the Court of the learned S.D.J.M., Bhubaneswar. All the petitioners appeared in the case through their Advocate and filed petition u/s 205 Cr.P.C. for dispensing with their personal appearance and hence this revision.

In this case, by order dated 17.1.2005 notice was issued by this Court on the sole opposite party (complainant) with the observation that the matter was likely to be disposed of at the stage of admission and the further proceeding in ICC No. 2303 of 2003 pending before the learned S.D.J.M., Bhubaneswar was stayed till 21.2.2005 which was subsequently extended from time to time. On receipt of the notice, the sole opposite party (complainant) appeared in the case.

Learned Counsel for the petitioner submits that this is a fit case where the learned trial Court ought to have exercised its discretion in dispensing with the personal appearance of the present petitioners, as per the provisions of Section 205 Cr.P.C.

Section 205 Cr.P.C. reads as follows :

"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."

In support of the contentions, learned Counsel for the petitioner relied on the decisions in the cases of Sudhakar Dash v. Smt. Nirupama Mishra reported in Kaveri alias Benga and Another Vs. The State, Damodar Mishra v. State of Orissa and two Ors. reported in 2002 (II) OLR 663 and S.V. Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Anr. reported in AIR 2005 SCW 2364.

In the case of Sudhakar Dash (supra), this Court has held that normal appearance of the accused-petitioner would be necessary when his identification by witness is necessary or for recording his statement u/s 313 Cr.P.C., if for any other reason such appearance is necessary at any other stage, the Court has absolute right u/s 205(2) Cr.P.C. to call upon the accused to appear personally. Relying upon a decision in the case of Pitambar Das v. Govinda Chandra Satpathy reported in 41 (1975) CLT 1096 it has been observed by this Court that the Magistrate has to indicate convincing reasons for refusing the prayer for representation by lawyer. The progress of the case will not be affected at the initial stage if the personal attendance is dispensed with till such date when the presence of the accused would be necessary for the proper trial or disposal of the case.

In the case of Kaveri '' Benga '' Sukanti Paikarai and Anr. (supra) while dealing with an application for dispensing with the personal attendance, it has been observed that the Court should not take too technical or stringent view. The approach should be to see whether personal appearance is absolutely necessary for purpose of the case.

In the case of Damodar Mishra (supra), it has been observed by this Court after discussing Various decisions with regard to scope of Section 205 Cr.P.C. that (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 Pardanashin ladies, old, ailing or infirm persons or Government servants or businessman. 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." Finally it has been held that exemption u/s 205 Cr.P.C. cannot be claimed by a person as a matter of right and while dealing with an application under that provision discretion of the Court be judiciously applied. Once such discretion has been judiciously exercised, the same should not be interfered with simply because a litigant feels aggrieved by the order.

In the case of S.V. Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Anr., it has been observed that if the appellants file application in terms of Section 205 of the Code for dispensing with their personal attendance, the trial Court will do to take note of the same and dispense with the personal attendance by stipulating conditions in terms of Section 205(2) of the Code. It has to be borne in mind that while dealing with an application in terms of Section 205 of the Code, the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. It is made clear that if at any stage the trial Court comes to the conclusion that the accused persons are trying to delay the completion of trial, it shall be free to refuse the prayer for dispensing with personal attendance.

So far as the case at hand is concerned, the allegation is mainly against petitioner No. 1, who is an ailing person and suffering from cardiac disease. It is alleged, petitioner No. 1, who, even though, was well aware of the fact that he did not have title over the property executed the false agreement and cheated the complainant by taking Rs. 65,000/- from him. So far as the allegation against petitioner No. 2, who is a student and prosecuting his studies and petitioner No. 3, who is a practising lawyer of Bhubaneswar Bar is concerned, it is to the effect that both of them were along with petitioner No. 1 and rebuked the opposite party in filthy languages and threatened him to take away his life.

The learned trial Court while rejecting the petitioners'' application u/s 205 Cr.P.C. in the impugned order has observed that taking into account the nature of allegation made. I am not inclined to extend the benefit of Section 205 Cr.P.C. to the accused person. In the result, the petition is felt to be without any merit and the same stands rejected and the accused persons are directed to physically appear before this Court on 10.1.2005 failing which coercive measure shall be taken for causing their appearance.

As indicated above, while dealing with an application in terms of Section 205 Cr.P.C. the Court has to consider whether any useful purpose would be served by requiring personal attendance of the accused or as to whether progress of the trial is likely to be hampered on account of his absence. There is no hard and fast rule or a straight jacket formula can be prescribed as to whether exemption of personal appearance shall be granted and when it is to be refused it all depends upon the facts and circumstances of the case. When there is no prospect of quick disposal of the case and no question involves regarding identity of the accused, direction for personal appearance may cause harassment in case of Pardanasin lady, old and ailing or infirm person or a Government servant or businessman, the Court should consider their case keeping in view the totality of all circumstances. The allegation, on the basis of which the present complaint has been filed, is mainly against petitioner No. 1 who is an old and ailing person as stated above and so far as execution of agreement and non-compliance of the terms of agreement is concerned, the same is a civil liability. So far as petitioners 2 and 3 are concerned, there is allegation against them that they were along with petitioner No. 1 and abused complainant in filthy languages and threatened him. Petitioner No. 2 is a student who is prosecuting his studies and petitioner No. 3 is a local lawyer of Bhubaneswar Bar. In view of the above, learned trial Court while disposing of the application filed by the petitioner u/s 205 Cr.P.C. ought to have considered the same in its proper perspective keeping in view the settled principle of law in this regard and ought to have passed a reasoned order. There is nothing in the order to indicate as to what are the facts and circumstances to lead him for arriving at such a conclusion in rejecting the prayer of the petitioner.

In view of the above impugned order dated 18.12.2004 passed in ICC No. 2303 of 2003 is hereby set aside. Learned S.D.J.M., Bhubaneswar is directed to reconsider the application filed by the petitioners for dispensing with their personal attendance keeping in view the provisions of Section 205 Cr.P.C. as well as keeping in view the well settled principles of law in this regard and dispose of the petition by passing a reasoned and speaking order.

The Criminal Revision is accordingly allowed.