Pitambar Das and Others vs Gobinda Chandra Satpathy

S. Acharya, J.—Heard counsel appearing for both the parties. The matter was admitted on 11-7-1975.

Notice for hearing of this matter bad been taken on the opposite party and Mr. Sen has entered appearance on behalf of the opposite party. With the consent of the counsel appearing for both the parties the matter is taken up for hearing and is being disposed of by this judgment.

This petition is against an order passed by the Court, below on a petition filed u/s 205, Criminal i Procedure Code for allowing the Petitioners to be represented ''in the trial Court- by their lawyers during the trial of the case against them. The said petition was filed in the Court below on the first date of appearance of the Petitioners as accused persons in that Court in obedience to summons issued to them. On that date the Magistrate without indicating any convincing reasons dismissed the said petition merely on the ground that the said petition was filed at the initial stage of the case, and the Petitioners had not appeared before the Court even for once. The grounds on which that petition was dismissed are certainly not good and convincing grounds for rejecting such a prayer in a matter of this nature it is obligatory on the part of the Magistrate to indicate convincing reasons for refusing the prayer for representation by lawyer as in this case. The grounds on which the petition in question was dismissed indicate that the Magistrate did not apply his judicial discretion in dealing with the said petition u/s 205, Criminal Procedure Code.

In paragraph 2 of this petition it has been stated on affidavit that Petitioner No. 1 Pitambar Das is an old man of 80 years and is not able to freely move out of his house. It is also stated on affidavit that Petitioners 2 and 3, the two female Petitioners, are both Purdanashin ladies and they generally never come out of their house as they both belong to respectable orthodox; Brahmin family. In the counter filed by the opposite party the fact alleged by the Petitioners that Petitioner No. 1 is 80 years old has not been counteracted. It is merely stated in the counter that Petitioner No. 1 is able to move about. With regard to Petitioners 2 and 3 it is stated that they are not Purdanashin ladies and that they appear in public. Petitioner No. 3 Anuchhaya Misra is undisputedly the mother of Petitioner No. 2, and they both are Brahmin ladies belonging to two different villages. The respectability of their families is not questioned.. The case against the Petitioners is one u/s 494/109, Indian Penal Code and is at its initial stage. The progress of the case at this stage will not be affected if the personal attendance of the Petitioners is dispensed with till such date when their presence will be necessary for the proper trial or disposal of the case.

On the above considerations I find that the Court below was not justified in rejecting the aforesaid prayer of the Petitioners.

Mr. Sen, the learned Counsel for the opposite party, states that during the trial of the case Petitioner no 2 has to be identified by the prosecution witnesses and hence she has to remain present in the Court during the examination of the witnesses. While allowing the prayer of all the three Petitioners for representation by lawyer, it is made clear that Petitioner No. 2, or for that any of the other two Petitioners also, may be directed by the Court below to appear before it at any time whenever their presence in Court is considered necessary in the interest of justice and for the proper disposal of the case.

Accordingly, the petition for representation u/s 205, Code of Criminal Procedure in respect of all the three Petitioners is allowed and the Court below is directed to allow these three Petitioners to be represented through their lawyers during the trial of the case. As stated above, the trial Court may direct all or any of the Petitioners to appear before it at any time whenever it considers their presence necessary for the proper disposal of the case.

The petition accordingly is allowed in the terms stated above.

The L.C.R. be sent back immediately.