Somanath Mishra and Another Vs State of Orissa

D.P. Mohapatra, J.@mdashThe accused in G.R. Case No. 423 of 1989 pending in the Court of the learned Judicial Magistrate, first Class, Nimapara, filed this application u/s 482, Code of Criminal Procedure assailing the order dated 24-4-1990 by which the learned Magistrate turned down their prayer to dispense with their personal attendance in the Court and to permit them to be represented by their Advocate u/s 205(1), Code of Criminal Procedure Petitioner No. 2 is the wife of the Petitioner No. 1.

The criminal case was initiated under Sections 269/270/290/34, I.P.C. on the allegations, inter alia, that the Petitioners are unlawfully and negligently maintaining a cow shed which is ami is likely to spread infection of disease dangerous to human life. In the said case, the learned Magistrate issued summons requiring the Petitioners to appear in his Court. Before appearing in the case, the Petitioners filed the application u/s 205(1) Code of Criminal Procedure to dispense with their personal appearance.

2. From the impugned order, it appears that the learned Magistrate rejected the application mainly on the ground that the Petitioners had not complied with the direction in the summons requiring them to personally appear in the Court. He referred to the decision of this Court reported in (1988) 1 D.C.R. 108 (Rudrapanki Dhurjati Devara '' Dhurjati Devara v. Rama Chandra Subudhi) in which the accused persons appeared in the Court and thereafter moved the Court to dispense with their personal attendance in the case. The learned Magistrate further observed:

To add to it, considering the nature, manner and the gravity of the offences alleged to have been committed by the accused/Petitioners, I find no force in the contention raised by the learned defence counsel. Moreover, the averments of the petition do not reflect the constraints of the accused-Petitioners for their appearance in person in this Court.

On perusal of the impugned order it appears to me that the learned Magistrate was of the view that since the accused had not appeared in Court as directed in the summons the application for dispensing with their appearance could not be entertained. It is the contention of the Petitioner, which is not refuted by the opposite party, that Petitioner No. 1 is a lawyer practising at Talcher Petitioner No. 2 who is his wife, observes purdah and does not move in public generally. Regarding the nature of allegations offence, the learned Magistrate has not given any indication whatsoever for what purpose personal appearance of the accused was felt necessary right from the initial stage of the case.

3. It is thus clear that while passing the impugned order the learned Magistrate did not apply his mind properly to the facts and circumstances of the case, the necessity for personal appearance of the accused and the provisions of Section 205, particularly Sub-section (2) which empowers the Magistrate to direct personal attendance of the accused at any stage of the proceeding, if necessary, even though by a previous order representation of the accused persons has been allowed under the provisions of Section 205(1), Code of Criminal Procedure. The order is therefore not sustainable and has to be vacated.

4. In course of hearing of this case a question arose at what stage the jurisdiction u/s 205(1), Code of Criminal Procedure is available to be exercised by a Magistrate; whether it is only at the stage when he is considering issuing summons or at any subsequent stage. In other words, in a case where summons has been issued to the accused, is it mandatory that he should appear in Court before seeking order of the Magistrate to dispense with his personal attendance.

5. It was stated at the Bar that the point usually arises while considering applications filed u/s 205(1), Code of Criminal Procedure and it needs to be clarified. A Division Bench of the Allahabad High Court in the case of Aditya Pd. Bagchi Vs. Jogendra Nath Maitra, observed that Section 205 only applies to the stage where a Magistrate is considering the issue of a summons or warrant for the appearance of an accused person and no further; it should not be extended to cover the powers of a Magistrate for exemption of the attendance of an accused person at any other stage except when the Magistrate is issuing process at the commencement of the proceedings. The contention which the Court was examining in that case was that a Magistrate is competent to dispense with the attendance of accused person and to allow him to appear through a pleader only in those cases in which he issues a summons in the first instance and that if a warrant has been issued in the first instance a Magistrate cannot exercise the power of allowing an accused to appear through a pleader. While negativing the said contention the Court observed as noted earlier.

A Full Bench of the Calcutta High Court in the case of Prova Debi Vs. Mrs. Fernandes, relying on certain earlier decisions of the Court and dissenting from the view taken in Aditya Pd. Bagchi Vs. Jogendra Nath Maitra, held that the Magistrate who issues the summons may exercise the power u/s 205(1) not only at the stage when he is issuing the summons in the beginning, but also at any stage, at any rate before the trial begins, the only limitation is that the Magistrate who issues the summons can alone exercise the power and not any other Magistrate. A similar view was taken by a Division Bench of the Calcutta High Court in the case of Ajit Kumar Chakraborty and Ors. v. Serampore Municipality reported in 1969 Cri. L.J. 523 wherein it was observed that there is nothing in Sub-section (1) of Section 205 which gives even the remotest indication that in order to claim exemption from personal attendance the accused must at the first instance appear personally in Court. On the contrary the Sub-section clearly goes to show that even at the stage of issuing summons the Magistrate may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. This discretion may be exercised by the Magistrate even in-the absence of any prayer by the accused for exemption from personal attendance.

This Court had occasion to consider the scope and ambit of Section 205(1), Code of Criminal Procedure in several cases of which a few may be noticed.

In the case of Smt. Savitri Sahuani and Anr. v. Maguni Sahu reported in 47 (1979) C.L.T. 103 it was observed, inter alia, that the legislative intention in enacting the provisions (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 expeditious disposal of cases.

In the case of Sudhakar Das v. Smt. Nirupama Mishra reported in 62 (1986) C.L.T. 445 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 trial requires the same, in the matter of this nature it is obligatory in the part of the Magistrate to indicate convincing reasons for representation by lawyer.

A similar view was taken in the case of Jayakrushna Das v. State of Orissa reported in 1968 (II) O.L.R. 616 : (1988) 1 OCR 628.

In a recent decision in the case of Kama Prasad Rout and Ors. v. Madan Mohan Das reported in 1990 (1) O.L.R. 216 this Court considering the scope and ambit of Section 205 held that the power vested in the Magistrate u/s 205(1) Code of Criminal Procedure is discretionary; even if the Magistrate has refused to dispense with personal attendance of an accused u/s 205(1) he can dispense with personal attendance at a later stage in the case u/s 317, Code of Criminal Procedure and even after dispensing with personal attendance of an accused and permitting his representor on by Advocate, the Magistrate can direct personal attendance u/s 205(2) Code of Criminal Procedure. It was further held that the order passed u/s 205 is interlocutory in nature.

6. Considering the conspectus of the views taken by this Court as well as other Courts as noticed in the preceding paragraphs, the intent and purpose for which Section 205 is enacted and the plam language in Sub-sections (1) and (2) of Section 205 and Section 317 Code of Criminal Procedure, I am inclined with respect, to agree with the view taken by the Calcutta High Court that in a case where the Magistrate has issued summons to the accused it is not mandatory for the latter to personalty appear in Court before filing the application u/s 205(1), Code of Criminal Procedure, to dispense with his personal attendance.

7. On the analysis and discussion in the foregoing paragraphs, the application is allowed, the order passed by the learned Judicial Magistrase, first Class, Nimapara on 24-4-1990 rejecting the Petitioners application u/s 205(1) Code of Criminal Procedure is set aside and the learned Magistrate is directed to reconsider the matter in the light of the discussions in this judgment and in accordance with law.

The lower Court records be returned forthwith.