Sri Damodar Mishra vs State of Orissa and Others

P.K. Tripathy, J.—8.11.2000 -Heard.

This revision application is disposed of at the stage of hearing on admission with active participation of both the parties.

Order dated 27.3.2000 in I.C.C. No. 163 of 1999 passed by learned S.D.J.M., Khurda is under challenge in this revision filed at the instance of the complainant who is the petitioner. Learned S.D.J.M. on 27.3.2000 allowed the prayer of the opposite parties 2 and 3 who are accused persons in that case, to be represented u/s 205 of the Code of Criminal Procedure, 1973 (in short the ''Code'')

Learned counsel for the petitioner states that keeping in view the involvement of the opposite parties 2 and 3 in a case u/s 452, 380 and 506,I.P.C. particularly in view of the punishment provided for those offences, it can safely be stated that they are not entitled for exemption for personal appearance in view of the ratio in the case of Jagadguru Sachidananda Shankarabharati Swami of Sri Kudli Sringeri Mutta v. State of Mysore AIR 1969 Mys 95 (V 56 C 21) Kama Prasad Rout and Ors v. Chandrakanti Bal and Ors., (1990) 3 OCR 118 and Joy Sing Rajput and Another Vs. Bachheraj Dugar, and, therefore, the impugned order of learned S.D.J.M. is illegal and not sustainable.

Learned counsel for the opposite parties 2 and 3 on the other hand supporting the impugned order places reliance on the cases of Damodar Misra v. State of Orissa, (1998) 14 OCR 575, Tilotama Kar and Others Vs. Ranjitarani Satpathy and Others, and Kamaljeet Singh Ahluwalia Vs. State of Orissa, .

During the course of argument several extraneous factual aspects have been highlighted by both the parties casting aspersion against each other and this Court finding that to be irrelevant, considers only the point of law u/s 205, Cr. P.C. mooted during the course of hearing to examine legality of the impugned order.

In Joy Singh Rajpur (supra) the Assam High Court considered the question as to whether representation u/s 205, Cr. P.C. should be allowed when Non-bailable Warrant of arrest was issued against the accused. That ratio has no relevancy inasmuch as in the present case summons had been issued. In the case of Jagadguru (supra) the Mysore High Court affirmed the order of the lower Court rejecting the prayer to extend the representation till end of the trial, inter alia, on the ground of the provision in Section 288 of the Code of Criminal Procedure, 1898, That decision is also of no relevance. In Kama Prasad (supra) this Court reiterated the principle that "personal appearance of an accused is the rule in criminal case of serious nature, involving moral turpitude and punishable with imprisonment for some length of time." In Tilottama (supra) this Court held that when it concerns a Purdanashin lady, high placed public functionary, a busy captain of an industry and persons rendering public service then normally Court should dispense with personal appearance of the accused belonging to that categories. When the present petitioner was accused for the offences alleged under Secs. 468, 469 and 507 of the Indian Penal Code besides another criminal case was also pending against him, he along with the co-accused being an Assistant Manager in NABARD applied for representation u/s 205 of the Code but rejected by learned S.D.J.M. he approached this Court for remedy and in the decision reported in (1998) 14 OCR 575 (supra) it was held that because the petitioner is a practising advocate and the other accused is an officer rendering public service should be exempted from personal appearance. In the case of Kamaljeet (supra) after considering the scope and object of Section 205 of the Code this Court summarised thus :

"8. On perusal, of the case law referred to above it appears that this Court has taken a consistent view regarding the scope of Section 205 of the Code. It is readable from the aforesaid decisions 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."

In this case, on a careful perusal of the impugned order, this Court finds that the learned S.D.J.M. has not misappreciated the facts or misled the law while considering the prayer u/s 205 of the Code. It has been time and again said that exemption u/s 205 of the Code 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 that order. In this case there is no reason to interfere with the impugned order. Hence, the criminal revision is dismissed being devoid of merit.