PRASANNA KUMAR BARADA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is a petition under Section 482, Cr.P.C. wherein the petitioners have challenged the legality of the order dated 16.10.2000 passed by the learned J.M.F.C., Ranpur in G.R.Case No. 6 of 2000 rejecting the petition filed under Section 205, Cr.P.C. refusing the prayer to dispense with the personal attendance of the petitioners allowing their counsel to represent them.

(2.) Perused the impugned order. The learned counsel of the petitioners submits that since the learned J.M.F.C. has not assigned any convincing reason for rejecting the prayer of the petitioner, the order is liable to be set aside. In the above context, it is further submitted that the reason assigned by the learned Magistrate that the petitioners are reported to be the absconders cannot also be accepted as a convincing reason as there is no bar to allow a petition under Section 205, Cr.P.C. even where warrants have been issued at the initial stage. The learned Addl. Standing Counsel, however, supported the impugned order. It is noticed that in the instant case the offences alleged are under Sections 148, 294, 506, 323, 324 read with Section 149, I.P.C. It is submitted that the petitioners are permanent residents of Gobardhanpur under Ranpur Police Station in the district of Nayagarh and they are all along in their village, but the police without ever trying to contact them has filed the charge-sheet showing them as absconders with some mischievous design. It appears that as the petitioners have been shown as absconders, the learned Magistrate has issued N.B.W.M. against them. In this context, it will be profitable to refer to the case Radhanath Rath and two others v. M/s. Babula Agarwalla and another reported in Vol. 60 (1985) C.L.T. Short Note No. 114 at page 54 wherein this Court has observed that the language of Section 205 of the Code shows that the Magistrate can exercise that discretion only when summons is issued but in practise usually this power is exercised only when an accused appears pursuant to a summons issued by a Magistrate. In Kaveri alias Benga alias Sukanti Paikarai and another v. The State reported in 78 (1994) C.L.T. 881 two of the accused persons who were shown as absconders in the charge-sheet and against whom N.B.W. As were issued moved a petition under Section 205, Cr. P.C. before the learned Magistrate to dispense with their personal appearance allowing their lawyer to represent them. Their above prayer was rejected. They challenged the said order by filing a petition under Section 482, Cr. P.C. before this Court and the Court allowed the said petition observing that while dealing with an application for dispensing with the personal attendance, the Court should not take too technical or stringent view. The approach should be to see whether personal appearance is absolutely necessary for the purpose of the case. On a reading of the above two decisions, it appears that the Magistrate can exercise the judisdiction not only at the time of issuing summons but also at a subsequent stage. Therefore, under the circumstances of the case, refusal of the prayer of the petitioners in the instant case solely on the ground that they have been shown as absconders in the charge-sheet cannot be said to be proper. It is an established principle that while rejecting such a petition the Magistrate is to indicate convincing reasons for not allowing the same. In Sudhakar Dash v. Smt. Nirupama Mishra reported in 62 (1986) C.L.T. 445 it has been held :

(3.) In view of the above principle, the impugned order passed by the learned Magistrate rejecting the prayer without assigning convincing reasons for refusal of the prayer cannot be supported. Accordingly, the impugned order is set aside and it is directed that the petitioners shall produce the copy of this order before the learned J.M.F.C., Ranpur and move a petition through their counsel within a period of three weeks for reconsideration of their petition filed under Section 205, Cr.P.C. which the learned J.M.F.C. shall dispose of by passing a reasoned order. The Criminal Misc. Case is disposed of. Criminal Misc. Case disposed of.