Sri V. Prasant Kumar Raju vs Madras Cement Ltd.

I. Mahanty, J.—This is an application u/s 482 of the Code of Criminal Procedure seeking to challenge the Orders Dated 6.4.2009 & 16.4.2009 passed by the Learned J.M.F.C., Bhubaneswar in I.C.C. No. 1178 of 2008 rejecting the application of the Petitioner to recall of the N.B.W.(A) & dispense with the personal appearance of the Petitioner.

On perusal of the impugned order, it is seen that the Learned J.M.F.C., Bhubaneswar rejected the petition u/s 205 Code of Criminal Procedure. on the ground that at this belated stage, after the order was passed of N.B.W.(A) the petition to recall the N.B.W. & dispense with the personal appearance of the accused is not maintainable.

In the case of M/s. Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors. reported in (2001) 21 OCR (SC) 452 , Hon''ble Supreme Court has held that in appropriate cases the Magistrate can allow an accused to make even the first appearance through a Counsel & the Magistrate is empowered to record the plea of the accused even when his Counsel makes such a plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the Court to dispense with the personal attendance of the accused (provided he is represented by a Counsel in that case) even for proceeding with further the steps in the case. The Hon''ble Apex Court has noted that one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case & that a Counsel on his behalf would be present in Court & that he has no objection in taking evidence in his absence.

In view of the aforesaid decision of the Hon''ble Supreme Court & in the facts of the present case, I am of the view that there is no reason as to why the application filed by the Petitioner u/s 205 Code of Criminal Procedure. ought not to be allowed subject to, of course, filing of an undertaking as directed by the Hon''ble Apex Court hereinabove. In order to avoid delay in trial of the case, the present CRLMC is allowed & the Orders Dated 6.4.2009 & 16.4.2009 passed by the Learned J.M.F.C., Bhubaneswar in I.C.C. No. 1178 of 2008 are set aside.

If the Petitioner-Sri v. Prasant Kumar Raju appears before the Court below on 6.1.2010 & files such an application, the Learned J.M.F.C. is directed to act in terms of the aforesaid judgment of the Hon''ble Supreme Court providing for an undertaking & dispose of the same accordingly.

N.B.W. issued against the Petitioner shall not be executed till 6.1.2010.

Urgent certified copy of this order is granted on proper application.

Appeal disposed of.