SUROJIT SEN AND SANJAYA SINGH Vs. SANATAN BEHERA

JUDGEMENT

(1.) ICC Case No. 21 of 1995 has been filed against the two petitioners alleging commission of offences under Sections 294, 385, 394/34, Indian Penal Code. It is alleged in the complaint petition that the complainant had purchased a vehicle on the basis of hire purchase agreement from Kalinga Auto Centre Ltd., Cuttack, of which Surojit Sen (petitioner in Cr. Misc. Case No. 882/96) is the Managing Director. It is further alleged that though the complainant had repaid a sum of Rs. 4,16,000/ - and odd, the two petitioners forcibly took away the vehicle. The petitioner in Criminal Misc. Case No. 987 of 1996, who is a driver, had filed an application under Section 205, Code of Criminal Procedure, (in short, the 'Cr.P.C') through his lawyer, but without passing any order on the said application, N.B.W. has been issued against him. The other petitioner after receiving summons had also filed an application under Section 205, Cr.P.C, but without dealing with the same, the Magistrate has directed for his appearance. The main question raised by the two petitioners in this case is as to whether their applications under Section 205, Cr.P.C. should have been allowed and their personal attendance should have been dispensed with.

(2.) THE learned counsel appearing for the complainant -opposite party has relied upon the decision reported in (1998) 14 OCR 270 (Md. Kansur Ali and Anr. v. Iftaz Nawaz) and submitted that since there is no abuse of the process of law and failure of the ends of justice by directing the accused persons to appear, the petitions under Section 481. Cr.P.C. filed in this Court should not be entertained. In the aforesaid case, the Magistrate after considering the relevant facts and circumstances had rejected the application under Section 205. Since in the present case, the Magistrate is yet to consider the application under Section 205 on merit, the principle decided in the aforesaid case has no application to the present applications under Section 482, Cr.P.C. - -

(3.) IT is apparent that the Magistrate was labouring under the erroneous impression that before considering an application under Section 205(1), C.P.C. the personal attendance of the accused is necessary. In the decision reported in (1990) 3 OCR 577 (Somnath Mishra and Anr. v. State), Hon'ble Justice D.P. Mohapatra (as his Lordship then was) relying upon several decisions observed that it is not mandatory for the accused to personally appear in Court before filing the application under Section 205(1), Cr.P.C. Similar view was expressed in the decision reported in 78 (1994) CLT 881 (Kaveri alias Benga alias Sukati Paikarai and Anr. v. The State), wherein the application for dispensing with personal attendance under Section 205(1), Cr.P.C. was considered by the High Court in spite of the fact that the accused persons had been shown as absconders in the charge sheet and N.B.W. had been issued. The circumstances under which personal attendance can be dispensed with have been considered by this Court in the aforesaid two decisions as well as number of other decisions such as reported in (1992) 5 OCR 97 (Ramesh Chandra Lath v. State of Orissa) : 1994 (II) OLR 537, (1994) 7 OCR 721 (Bikram Kumar Routray v. State of Orissa) : 60 (1985) CLT (Short Notes) No. 114 (Radhanath Rath and Ors. v. Babulal Agarwalla and Anr.); and 62 (1986) CLT 445 (Sudhakar Dash v. Smt. Nirpuama Mishra). Most of the aforesaid decisions have been noticed in the decisions reported in (1998) 14 OCR 575 (Damodar Mishra v. State of Orissa). On a perusal of the aforesaid decisions, it can be now held to be well settled that the power under Section 205(1), Cr.P.C. can be exercised not only at the stage of issuing summons to the accused persons, but also at the subsequent stage even after issuance of N.B.W. Law is further clear that even if such an application is rejected on earlier stage, such power can be exercised at a subsequent stage by invoking the principles recognised in Sections 273 and 317, Cr.P.C. It is further clear that such an application is maintainable even though the accused has not appeared personally.