SURENDRA PUHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure seeking to challenge the order dated 10.5.2010 passed by the learned S.D.J.M., Bhadrak in I.C.C. No.419 of 2008 rejecting the application of the petitioner filed under Section 205 CrPC for dispensing with the personal attendance of the petitioner.

(2.) On perusal of the impugned order, it is seen that the learned S.D.J.M., Bhadrak while taking note of the fact that the offence under Section 138 of the Negotiable Instrument Act is bailable in nature and placed reliance upon the judgment of the Hon'ble Apex Court rendering in the case of M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd. and others1, in coming to a conclusion noted that he did not find any factual justification to permit the petitioner to be represented under Section 205 CrPC at the present stage of the trial.

(3.) On perusal of the decision relied upon by the trial Court, I am of the considered view that he has misapplied and misconstrued the aforesaid judgment since in the aforesaid case, 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 and 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, and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence.