KAVERI ALIAS BENGA Vs. STATE

JUDGEMENT

(1.) Petitioners, two ladies, moved learned Judicial Magistrate, first class, Banpur for dispensing with their personal attendance in terms of Section 205 of the Code of Criminal Procedure, 1973 (in short, the 'CrPC'). The prayer was rejected primarily on the ground that petitioners were shown as absconders in the charge sheet. The plea that the petitioners were two Purdanashin ladies and had nothing to do with the alleged offences for which cognizance has been taken, did not cut ice with the learned JMFC.

(2.) Mr. G. Tripathy, learned counsel appearing for the petitioners, submitted that Section 205, is a beneficiary provision. The same is to be exercised by taking into consideration the various aspects like the real necessity of the accused being present, the nature of accusations, and the social status of the applicant, and a rigidistic approach would be against intent and purpose of enactment of Section 205. The learned counsel for State on the other hand supported the order stating that in the charge sheet filed petitioners were shown as absconders and non-bailable warrants were issued against them.

(3.) Section 205, empowers a Magistrate whenever he issues a summons to dispense with personal attendance of the accused and permits him to appear by a pleader. Section 2 (q) of the CrPC defines the term "pleader". According to the said definition, 'pleader' when used with reference to any proceeding in any Court means a person authorised by or under any law for the time being in force, to practice in such Court and includes any other person appointed with permission of the Court to act in such proceeding, Both Sub-Section (1) of Section 205, and Section 273, of the Cr PC provide for exemption of an accused from personal attendance; but they refer to different stages of the proceeding. While the former deals with initial appearance of accused before the Magistrate who issues summons, the latter deals with presence of accused at the trial and empowers the Presiding Officer to dispense with personal attendance of the accused at the trial. The use of the expression 'if he sees reasons so to do' clearly indicates that the power conferred by Section 205(1) is discretionary, and no hard and fast rule can be laid down, as to the manner in which it is to be exercised. The question when such discretion has to be exercised, has to be considered after giving due consideration in the attendant circumstances. No sweeping generalisation can be made. Court 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. These instances are illustrative and not exhaustive. 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, again prejudice is likely to be caused if he does not appear in Court. Whenever personal attendance is insisted upon, there is undubitably some harassment to the accused, and the Court 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. Court is expected to exercise its discretion after seeing full picture. Court should normally dispense with the personal appearance when it concerns with a Purdanashin woman, high placed public functionary, a busy captain of an industry, and parsons rendering public service. These aspects were highlighted by me in K. Narayan Patra v. Gopinath Sahu : (1991) 2 Orissa LR 301. In Ragunath Das v. Hari Mohan Pani : (1988) 65 Cut LT 335 and Tilotama Kar v. Ranjitarani Satpathy (1992) 1 Orissa OLR 437 a similar view was also expressed. Tilotama's case (supra) related to a Purdanashin woman. Although there is no exception in law that merely because an accused is a Purdanashin woman discretion must be exercised in her favour, yet it should be reasonably exercised in consideration of habits and customs of the country and the prejudice caused to a woman when she is required to attend any Court regularly. In a conservative society normally such appearances are looked down. Public appearance of woman still continues to be a taboo in a conservative society. The mere fact that an accused is a Purdanashin lady does not entitle her to remain exempted all the time even if her presence is required for proper conduct of the case. As a matter of right exemption from personal attendance cannot be claimed. The screen must not be used to defeat the ends of justice.