TILOTAMA KAR Vs. RANJITARANI SATPATHY

JUDGEMENT

(1.) THE petitioners together with opposite parties 2 and 3 are arrayed as the accused persons in the criminal case, I.C.C No. 277 of 1991/1222T of 1991 under sections 498 -A and 406 I.P.C. which is pending in the court of the Subdivisional Judicial Magistrate, Kendrapara. The case was initiated on the complaint filed by the opp. party No. 1. In the said case the petitioners filed an application under section 205, Criminal Procedure Code praying to the learned Magistrate to dispense with their personal attendance and to permit them to be represented by their Advocate on the grounds that all of them are ladies, petitioner No.1 Tilotama Kar is an old lady, suffering from hypertension and will not be able to come to court very often due to her ailment and petitioners 2 and 3 who are daughters of petitioner No.1 are young girls of marriageable age, negotiation for their marriage is in progress and it will not be convenient and proper for them to appear before the court often. In their application the petitioners undertook to appear personally if and when the learned Magistrate deemed such appearance necessary for the purpose of the case. The learned Magistrate rejected the prayer by his order dated 5.1 0.1991. He did not accept that the plea of petitioner No.1 was sufficient to prevent her from coming to court; that the accused persons are in good physical condition to attend court and they should stand their trial personally. He observed that an offence under section 498 -A is treated to be henious offence in society for which no concession should be shown to be accused -petitioners. The petitioners have filed this revision petition assailing the said order.

(2.) THE Criminal Procedure Code has made provisions for dispensing with personal presence of the accused at different stages of the case. While section 205 empowers the Magistrate to pass such order while issuing summons, section 317 enables him to dispense with personal attendance of the accused at any stage of enquiry or trial. In the present case, concededly the petitioners had not appeared in pursuance of the summons issued by the Magistrate and had filed the application under section 205 Cr. P.C. for dispensing with their personal attendance. The scope of the power vested under section 205 and the manner of its exercise has come up for consideration in umpteen number of cases. In the case of Smt. Savitri Sahuani and another v. Maguni Sahu1, this Court tracing the legislative history behind the section and the amendments made there in from time to time observed that the legislative intention in enacting section 205 is to enable the court to freely exercise the power to exempt personal attendance of the accused in the interest of justice and for expeditions disposal of cases. In the case of Sudhakar Das v. Smt. Nirupama Mishra2, this Court observed that with the present day normal delay in trial an accused should not be compelled to appear personally if the same is not the requirement of law or when progress of the trial requires the same. In the matter of this nature, it is obligatory on the part of the Magistrate to indicate convincing reasons for representation by lawyer. Recently in the case of K. Narayan Patra v. Gopinath Sahu3, this Court considering the scope of the discretionary power vested under section 205(1) and the manner of its exercise observed that as the words "if he sees reason so to do" indicate power conferred by section 205(1) is discretionary, and no hard and fast rule can be laid down for its exercise; the question as to when such discretion is to be exercised has to be considered after giving due consideration - to the attendant circumstances and no sweeping generalization can be made. The Court further observed that the courts should be generous in exempting accused persons from personal appearance; such appearance is the rule in criminal cases of a serious nature, involving moral turpitude and punishable with imprisonment for some length of time; court should consider the nature of aberration alleged, prima -facie. material for acceptance of such allegation, possibility of mala fide allegation, prejudice, if any likely to be caused if personal attendance is not made; the court has to weigh inconvenience likely to be caused to accused if he is required to be absent from his vocation, profession, trade, occupation and calling for attendance in court, against prejudice likely to be caused if he does not appear in court. It was observed therein that whenever personal attendance is insisted upon, there is indubitably some harassment to the accused and the courts have to see that this harassment is not out of proportion to the seriousness of the allegation, the severity of possible punishment on conviction, nature of allegations as they stand out prima facie. The Court took the view that courts should normally dispense with personal appearance when it concerns a purdanashin by, high placed public functionary, a busy captain of an industry and person rendering public service. In the case of Purdanashin woman, courts have consistently taken the view that although there is no exception in law merely because the accused is a Purdanashin woman, discretion must be reasonably exercised by consideration of the social status and custom and also the nature of the offence, ordinarily exemption should be granted unless a strong prima facie case is made out against it. The discretion should be liberally exercised in view of the general feeling which exists against public appearance of woman and the fact that procedural law is frequently abused to gratify personal malice.

(3.) IN the present case the order passed by the learned Magistrate does not show that he considered the relevant matters discussed above, while dismissing the petition under section 205 Cr. P.C. He failed to appreciate that insisting on personal attendance of the petitioners, an elderly woman and two young girls, in court will indubitably cause serious inconvenience and harassment to them. The learned Magistrate has not staled any reason in the order why he felt that their personal attendance was necessary right from the beginning of the case. No special reason was also placed before me by the counsel for opposite party No. 1 -complainant why personal attendance of the petitioners should be insisted upon. I have therefore no hesitation to hold that the learned Magistrate did not exercise his judicial discretion properly while passing the impugned order.