DAMODAR MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner being aggrieved by the order dated 6-11-1997 passed by the learned S.D.J.M.(Sadar), Cuttack in G.R.Case No. 2085 of 1996 rejecting his prayer to dispense with his personal attendance in terms of Section 205, Cr. P.C.has come up for quashing the impugned order and for a direction to the learned Magistrate to dispense with his personal attendance in the aforementioned G.R.Case and to allow him to appear before the Court of the learned S.D.J.M.through a pleader.

(2.) The case of the petitioner is that on the infromation of one Laxmikanta Mohapatra, Bangalabag P.S.Case No. 286 of 1996 corresponding to G.R.Case No. 2085 of 1996 of the Court of S.D.J.M.(Sadar), Cuttack was registered against the petitioner and his son-in-law Manoj Kumar Mohapatra for the alleged offence under Sections 468, 469, 507 read with Section 34, I.P.C.In the said case summons were issued for appearance of the accused persons on 19-9-1997 on which date this petitioner and his son filed a petition under Section 205, Cr. P.C.with a prayer to dispense with their personal appearance and to permit them to appear by their pleaders. It is stated in the petition that the petitioner after his superannuation from the Government service has joined the Bar and has set up his practice as an Advocate at Cuttack having been enrolled as a Member of the Orissa High Court Bar Association, Cuttack. It is submitted that as an advocate he is to attend the Court regularly to conduct the cases in which he holds briefs and if his personal appearance is insisted in the aforesaid G.R.Case not only the professional career of the petitioner will be ruined but also the litigants who have engaged him shall suffer. As far as the other accused person is concerned, it is stated that he is an employee under the NABARD and is working as an Assistant Manager and his presence in the office is essential on all working days for the smooth running of the office and his appearance in the Court shall cause dislocation in the office administration as well as in rendering service to the people for whose benefit the said organisation exists. The informant filed his objection to the said petition stating that since at the time of taking cognizance order was passed on 20-3-1997 to issue N.B.W.A.the prayer of the accused persons to dispense with their personal attendance and to allow them to be represented by their counsel cannot be entertained taking resort to Section 205, Cr. P.C.It is also alleged by the informant that the present petitioner is involved in another case. Hence, his prayer made under Section 205, Cr. P.C.be refused. After hearing the parties the learned S.D.J.M.dismissed the petition of the accused persons on 6-11-1997 by the impugned order which is now under challenge in this Criminal Misc. Case.

(3.) The learned counsel for the petitioner submits that the grounds assigned for rejecting the petition are not sufficient to sustain the impugned order. The learned Addl. Standing Counsel appearing for the State, however, contended that the power available under Section 205, Cr. P.C.to dispense with the personal attendance of an accused being discretionary in nature, the same cannot be interfered with. Thus the question came up for consideration is as to whether Section 205 of the Code authorises a Magistrate to allow representation only at the initial stage of issuing summons or at any later stage. In the above context, it will be profitable to refer to some of the case laws cited at the Bar. In the case of Sudhakar Dash v. Smt. Nirupama Mishra, reported in (1986) 62 Cut LT 445, the petitioner after service of summons and before the date fixed in the summons for appearance filed the petition under Section 205, Cr. P.C.to dispense with his personal appearance and allow him to appear before the Court through his lawyer. The said petition was rejected without assigning any reason and N.B.W.A.was issued against him. The summons was not in Form No. 1 of the Schedule of the Code and there was also no direction to appear through pleader. This Court allowing the revision directed the Magistrate to recall the N.B.W.A.issued against the petitioner and allowed the petitioner to be represented by his lawyer. In the case of Kaveri alias Berga alias Sukanti Paikarai v. The State, reported in (1994) 78 Cut LT 881, two of the accused persons were shown in the charge-sheet as absconders and N.B.W.A.was issued against them. They moved the learned Magistrate under Section 205, Cr. P.C.to dispense with their personal appearance and allow their lawyer to represent them. Their prayer was rejected by the learned Magistrate. They challenged the said order by filing petition under Section 482, Cr. P.C.before this Court and the Court allowed the said petition indicating the circumstances in which the Magistrate can exercise the jurisdiction under Section 205, Cr. P.C.In the said case it has been observed as follows :