Ganesh Choudhury vs Harish Chandra Misra

P.R. Tripathy, J.—Heard learned Counsel for both he parties. On their consent, it is disposed of at this stage of hearing on admission.

Petitioner is the complainant in ICC No. 30 of 1997 pending in the Court of S.D.J.M., Berhampur. Opposite party is the accused in that case. He is working as Superintending Engineer presently attached to the office of the Chief Engineer, Minor Irrigation Department, Bhubaneswar. It is alleged in the complaint petition that opposite party cheated the petitioner by Rs. 5,000/- (rupees five thousand) by giving false assurance to appoint him as N.A.R. The occurrence dates back to the year 1990 and the complaint petition was filed in the year 1997. After recording the initial statement of the complainant and conducting enquiry u/s 202 of the Code of Criminal Procedure (hereinafter referred to as ''the Code''), the S.D.J.M., Berhampur took cognizance of the offence u/s 420,I.P.C. and issued process u/s 204 of the Code against the opposite party. Opposite party entered appearance through his pleader on 23-7-1997 and filed a petition u/s 205 of the Code for dispensing with her personal appearance and it was allowed vide the order dt. 23-7-1997. Petitioner has challenged legality and correctness of that order by invoking the jurisdiction of this Court u/s 482 of the Code. Learned Counsel for the petitioner stated that in the notice u/s 204 of the Code received by the petitioner, he had been directed to appear personally or through pleader. Learned Counsel for the opposite party did not dispute correctness of that statement.

Learned Counsel for the petitioner argued that in a criminal trial, where the offence alleged provides for substantive sentence for good length of time, personal appearance of the accused is the rule and dispensing with personal appearance is exception. Lower Court in complete disregard to the settled position of law and being swayed away by the high official position of the opposite party misapplied the discretion in his favour which is abuse of process of law resulting in failure of ends of justice. He thus prayed to quash the impugned order and alternative argued to make it conditional that at the time of trial, opposite party shall appear in person.

Learned Counsel appearing for the opposite party argued that the complaint case is out and out a false case set up by the petitioner as a counter blast to G.R. Case No. 970 of 1990 which was registered against the petitioner at the instance of the opposite party. He further argued that the fact and circumstance was duly considered by the S.D.J.M. to pass a reasoned order in allowing the petition u/s 205 of the Code and that in such a matter the complainant has no locus standi to challenge the impugned order inasmuch as this is a matter of subjective satisfaction of the Court.

Both the parties relied upon case laws in support of their contentions.

Sub-section (1) of Section 205 of the Code provide it in unambiguous term that at the time of issue of summons, Magistrate may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. Keeping in view contingency of necessity for personal appearance of the accused at any stage of the proceeding, Sub-section (2) of Section 205 of the Code empowers the Magistrate to direct for personal attendance notwithstanding the initial order of granting exemption in favour of the accused. While passing order under Sub-section (1) or (2), Magistrate has to apply his judicial mind and to pass appropriate order and he is not to act mechanically or whimsically. The term ''discretion'' and ''judicial discretion'' means and signifies a practical but positive thought based on best of the human judgment supported with well-thought reason, wisdom, impartiality, equity and the law and the circumstances involving the point. It cannot be termed as use of discretion if the judicial act is infested with arbitrariness, fanciful thought, manifestation of malice or devoid of reasonings and so on and so forth. See the case of Basudev Purohit Vs. Republic of India and Another, .

It is true that in criminal trials consisting of offences involving moral turpitude or offences of grievous nature prescri4ing substantial substantive sentences, normal rule is that evidence should be recorded in the presence of the accused (See Jagadguru Sachidananda Shankarabharathi Swami of Sri Kudli Sringeri Mutt Vs. State of Mysore, and Kama Prasad Rout v. Madan Mohan Das 60 (1990) CLT 456. But a straight-jacket formula cannot be propounded streamlining in which case the discretion in favour of the accused u/s 205 of the Code is to be applied and where not. All that is needed that the Magistrate has to use his wisdom and apply his discretion in a just and equitable manner through a speaking order supported with reasons (See K. Narayan Patra Vs. Gopinath Sahu, ; Ramesh Chandra Lath Vs. State of Orissa, ; Bikram Kumar Routray v. State of Orissa (1994) 7 OCR 721; K. Nageswar Senapati v. K. C. Panda 1995) 8 OCR 94. Besides in some of the abovenoted citation, in the cases of Rudrapanki v.Rama Chandra Subudhi(1988) 1 OCR 108 and Jayakrishna Das v. State of Orissa (1988)1 OCR 628, it has been held by this Court that discretion should be exercised in favour of the accused persons in appropriate cases.

Learned S.D.J.M. while allowing the petition u/s 205 of the Code considered the contentions of both the parties and recorded that evidence can be recorded in the absence of the accused, but in presence of his representing counsel. According to the petitioner, imprisonment of seven years is the substantive sentence prescribed for the offence u/s 420, I.P.C. In view of that personal attendance of the opposite party should not be exempted u/s 205 of the Code. That itself is no absolute ground or reason to refuse the exemption u/s 205. Referring to the case of Usha K. Pillai Vs. Raj K. Srinivas and others, it is argued that the impugned exemption order may create hindrance in examination of accused u/s 313 of the Code and at least a specific direction may be issued to the trial Court to insist upon personal appearance of the opposite party in the Court. In the above cited case, while examining the scope of Section 313 of the Code vis-a-vis the mode of examination of accused in a case governed by warrant procedure the Apex Court have held that:

even in cases where the Court has dispensed with the personal attendance of the accused u/s 205(1) or 317 of the Code, the Court cannot dispense with the examination of the accused under Clause (b) of Section 313 of the Code because such examination is mandatory....

(quoted from paragraph 3 at page 490 (of OCR): (Para 4, at p. 2672 of Cri LJ))

Abovequoted ratio makes it clear that personal appearance of an accused, involving offence triable according to warrant procedure, should be ordered but at the time of his examination u/s 313 of the Code, the accused has to be personally examined and not through representing counsel. At the relevant time if the trial Court will depart from this settled position of law and procedure, then the petitioner is at liberty to approach the appropriate forum. At this stage it is pre-mature to issue any direction in that respect.

So far as it relates to locus standi of the complainant to challenge an order u/s 205 of the Code, in the case of Raghunath Das and Others Vs. Hari Mohan Pani, Hon''ble Sri S.C. Mohapatra, J. (as his Lordship then was) while in seisin of a Criminal Revision (under Section 401 of the Code) filed by the accused persons challenging the order of the Magistrate who had rejected a petitioner u/s 205 of the Code, held that (para 3 of Cri LJ):

So far as a prosecution initiated on complainant, the Magistrate while issuing summons has also power to direct the appearance of an accused through alawyer without personally appearing. Thus, complainant has no right to be heard. He can, however, bring to the notice of the Court at any stage the facts of an accused misusing the benefit of representation for appropriate order. Accordingly, I am not inclined to issue notice to the complainant which would have the effect of delay in disposal of this revision and the prosecution shall be delayed.

The issue raised in that revision was challenging bona fide and reasonableness in the impugned order rejecting petition u/s 205 of the Code and the view expressed by Hon''ble Judge was not to issue notice to complainant so as to save the proceeding from delay. So the above finding is an obiter dictum and not a ratio decidendi. Be that as it may, the complainant, in this case, being aggrieved by the impugned order has invoked the jurisdiction u/s 482 of the Code and he has locus standi to take recourse to the said provision.

On a thread bare analysis of the impugned order and the law and citation on the subject, it is found that the S.D.J.M., Berhampur has neither committed any illegality nor the impugned order has resulted in abuse of process of law. On the other hand, taking into due consideration the facts and circumstances and the legal provision, he has passed a just and proper order. Hence, the Criminal Misc. case is dismissed.