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2000 DIGILAW 549 (ORI)

KAMAL KUMAR MOHANTY v. STATE OF ORISSA

2000-12-07

P.K.TRIPATHY

body2000
JUDGMENT : P.K. Tripathy, J. - In this application u/s 482, Code of Criminal Procedure Petitioners have prayed to set aside the order dated 1999 in G.R. case No. 351 of 1998 of the Court of J.M.F.C., Jaies will In the body of the application also ground has been advanced challenging correctness of the order dated 25.6.1999 in the said G.R. Case. 2. It appears from the certified copy of the orders that on 10.5.1999, learned J.M.F.C., Jaleswar took cognizance of the offences punishable under Sections 341/323/324/307/294/506/34, I.P.C. It appears from Annexure-2 (the certified copy of the order sheet dated 25.6.1999) that petition u/s 205, Code of Criminal Procedure filed on behalf of the present Petitioners was rejected by the Court below on the ground of nature and gravity of the offences. 3. Mr. D. Nayak, learned Counsel for the Petitioners, did not argue anything challenging correctness of the cognizance order. Petitioners have also not filed any document in support of the averment in the application u/s 482, Code of Criminal Procedure, that there is absence of prima facie case. However, Mr. Nayak argued that Petitioner No. 2 being an aged lady, Petitioner Nos. 3 to 5 being unmarried Pardanasin girls, Petitioner Nos. 6 and 7 being students and Petitioner No. 1 being an aged man, they may be permitted to be represented u/s 205, Code of Criminal Procedure and alternatively the lower Court be directed to admit them to go on bail and the terms and conditions thereof be fixed by this Court. Learned Standing Counsel while supporting the order dated 25.6.1999 of the J.M.F.C., Jaleswar, states that if the Petitioners desire to surrender and apply for bail, then direction may be issued to the courts below to consider their bail applications in accordance with law. 4. After perusal of the aforesaid order dated 10.5.1999, this Court is not inclined to interfere with the order of taking cognizance because firstly the Petitioners by conduct, as noted above, have conceded to the correctness of the order by not advancing any argument against that order and secondly this Court finds no evidence or circumstances to dispute the the correctness of the said order of cognizance. 5. In a Criminal Case involving serious offence, personal appearance is the rule and exemption from personal appearance is exception. Such exception is to be applied for the ends of justice in exceptional circumstances only. 5. In a Criminal Case involving serious offence, personal appearance is the rule and exemption from personal appearance is exception. Such exception is to be applied for the ends of justice in exceptional circumstances only. A accused cannot claim an order u/s 205, Code of Criminal Procedure as a matter of right. Virtually, that is the feeling conveyed to the Court from the argument of the learned Counsel for the Petitioners. Be that as it may, one of the offences alleged is u/s 307, I.P.C. which is exclusively triable by the Court of session. Thus, allowing exemption from personal appearance to the Petitioners u/s 205, Code of Criminal Procedure would have caused inconvenience for the J.M.F.C. to complete the committal proceeding in proper manner. Under such circumstances, this Court does not find any fault with the order dated 25.6.1999 of the learned J.M.F.C. Therefore, order dated 25.6. I 999 is also not interfered with. 6. So far as the alternative prayer of the Petitioners is concerned, this Court could have considered the prayer for giving suitable direction regarding grant of bail to the lady accused persons if the Petitioners would have taken care to file the relevant documents, such as, F.I.R., Injury Certificate and statement of the injured person recorded u/s 161, Code of Criminal Procedure This Court is completely in dark about the facts leading to the occurrence and the manner in which there was an attempt to commit murder and who played what role in that occurrence. As noted above, Petitioners did not argue anything on merits challenging the order taking cognizance and learned Counsel for the Petitioners advances a contention which was confined to rejection of. the application u/s 205, Code of Criminal Procedure and the alternative argument is with the prayer to grant them bail. In other words, Petitioners had made up their mind to seek the aforesaid relief, i.e., a direction relating to bail. Therefore, it was expected from the Petitioners to produce material documents for perusal of the Court, so that appropriate directions could have been issued relating to the bail of the Petitioners. In other words, Petitioners had made up their mind to seek the aforesaid relief, i.e., a direction relating to bail. Therefore, it was expected from the Petitioners to produce material documents for perusal of the Court, so that appropriate directions could have been issued relating to the bail of the Petitioners. In the absence of any such material, this Court is not inclined to pass any order regarding grant or refusal of bail, save and except making an observation that if the Petitioners shall surrender in the Court of the J.M.F.C., Jaleswar within a period often days hence and shall apply for bail, learned J.M.F.C. may do well to hear and dispose of the bail application in accordance with law expeditiously and, if possible, during the first hour of the day. In the event of rejection of that application, if application for bail shall be moved in the Court of the Sessions, that Court may do well to hear and dispose of the bail application in accordance with law, and, as far as practicable, in course of the day of its filing, provided L.C.R. and case diary shall be made available to him for perusal. If application shall be moved by the Petitioners for transmission of the L.C.R. and case diary to the Court of Sessions at the cost of the Petitioners and the cost of the special messenger shall be deposited by the Petitioners, and in the event of rejection of the application for bail of any or all of the Petitioners, learned J.M.F.C. may do well to send the said records by a special messenger to the Court of Sessions without waiting for formal order from the latter Court. It is also indicted for the guidance of learned J.M.F.C. that if he finds it appropriate, then he may invoke the first proviso to Sub-section (1) of Section 437, Code of Criminal Procedure in favour of lady accused persons unless for reasons it will be against the interest of justice to exercise that discretion. 7. In the result, the Criminal Misc. Case is dismissed, but nonetheless the courts below are to abide by the aforesaid observations relating to consideration of the applications for bail. Final Result : Dismissed