Santosh Kumar Panda vs Mamatanjali Tripathy

R.K. Dash, J.—The petitioner is an Officer of State Police Administration and is now posted as Officer-in-charge of Orpada Police Station. The opp. party filed a complaint against him before the SDJM, Nilgiri which was registered as I. C, C. No. 48 of 1995. The learned Magistrate after conducting enquiry u/s 202, Cr PC took cognizance of the offence u/s 294 and 505, IPC and issued summons to the petitioner for his appearance. In response to the summons the petitioner entered appearance through his counsel and filed a petition u/s 205, Cr PC praying to dispense with his personal attendance. The learned Magistrate relying upon a decision of this Court in the case of Kama Prasad Rout and Others Vs. Madan Mohan Das, rejected the said prayer. Feeling aggrieved, the petitioner has approached this Court by filing the present application u/s 482, Cr PC challenging the said order.

Since the question for determination revolves round the scope and power of the Magistrate to dispense with accused''s personal attendance u/s 205, Cr PC. It is desirable to refer the same which reads as under :

"205. Magistrate may dispense with personal attendance of accused :

Whenever a Magistrate issues a summons, he may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

(1) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceeding, direct the personal attendance of the accused, and if necessary, enforce such attendance in the manner hereinbefore provided."

A plain reading of Sub-section (1) of Section 205, Cr PC clearly indicates that a Magistrate while issuing summons has discretion to dispense with personal attendance of the accused and permit him to appear through his advocate. In a catena of decisions this Court has held that the discretion so vested in the Court should be exercised judiciously and where the Court declines to exercise his jurisdiction in favour or the accused, he must assign good reasons. A reference in this context may be made to the case of Pitambar Das and Others Vs. Gobinda Chandra Satpathy, . In that case the prayer of the accused persons was rejected by the Court below on the ground that they had not entered appearance even for once. On approach being made, this Court set aside the said order and consequently allowed the prayer observing as follows :

"The grounds on which that petition was dismissed are certainly not good and convincing grounds for rejecting such prayer, in a matter of this nature it is obligatory on the part of the Magistrate to indicate convincing reason for refusing the prayer for representation by lawyer as in this case."

The aforesaid view was followed in a latter decision in the case of Smt. Savitri Sahuani and Another Vs. Maguni Sahu, . In the present case, the decision in Kama Prassd''s case (supra) relied upon by the learned Magistrate does not run contrary to what has bean observed in earlier two decisions. In ''Kama Prasad'' the offence alleged against the accused persons was one punishable u/s 494, IPC, So, considering the nature and the gravity of the offence, the Court held that the learned Magistrate was Justified in rejecting the prayer for representation of the accused persons u/s 205, Cr PC. The relevant observation of the Court necessary for the purpose is reproduced hereunder:

"Personal appearance of an accused is the rule in criminal cases of a serious nature, involving moral turpitude and punishable with imprisonment for some length of time. On the other hand, where the offence is punishable with fine only, and involves no moral turpitude the exemption should be the rule...."

The learned Magistrate in the present case when relied upon the aforesaid decisions, should have considered the observation extracted above and allowed the petitioner''s prayer dispensing with his personal appearance. Added to it, the learned Magistrate when issued summons to the petitioner, did not indicate as to whether he was required to appear personally or through his advocate. In the summons issued to the petitioner in Form No. 1 of Schedule-V of the Cr PC, there is a column where the words "or by pleader" were not scored out. Thus, the summons permitted petitioner either to appear personally or through his advocate. This aspect of the case was lost sight of by the Magistrate while rejecting the prayer. The petitioner is a Police Officer whose attendance can be procured in course of trial when necessity arises. Considering the nature and gravity of the offence, I am of the opinion that discretion should be exercised in favour of the petitioner permitting him to appear through his advocate.

In the result, the Criminal Misc. Case is allowed and the impugned order passed by the learned SDJM, Nilgiri is set aside. The petitioner''s personal attendance in the Court is dispensed with. He is permitted to appear through his counsel till conclusion of the trial. It is however, made clear that if his personal attendance is required during trial, the trial Court may by resorting to Sub-section (2) of Section 205, Cr PC enforce his attendance.

With the above observation the Criminal Misc. Case is allowed.