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Orissa High Court · body

2009 DIGILAW 955 (ORI)

V. Prasant Kumar Raju v. Madras Cement Ltd.

2009-12-14

I.MAHANTY

body2009
ORDER This is an application under Section 482 of the Code of Criminal Procedure seeking to challenge the orders dated 6.4.2009 and 16.4.2009 passed by the learned J.M.F.C., Bhubaneswar in I.C.C. No. 1178 of 2008 rejecting the application of the petitioner to recall of the N.B.W.(A) and dispense with personal appearance of the petitioner. On perusal of the impugned order, it is seen that the learned J.M.F.C., Bhubaneswar rejected the petition under Section 205 Cr.P.C. on the ground that at this belated stage, after the order was passed on N.B.W.(A) the petition to recall the N.B.W. and dispense with the personal appearance of the ac¬cused is not maintainable. In the case of M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd. & Ors., reported in (2001) 21 OCR (SC) 452, Hon’ble Supreme Court has held that in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel and the Magistrate is empowered to record the plea of the accused even when his counsel makes such a plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the Court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with further the steps in the case. The Hon’ble Apex Court has noted that one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence. In view of the aforesaid decision of the Hon’ble Supreme Court and in the facts of the present case, I am of the view that there is no reason as to why the application filed by the peti¬tioner under Section 205 Cr.P.C. out not to be allowed subject to, of course, filing of an undertaking as directed by the Hon’ble Apex Court hereinabove. In order to avoid delay in trial of the case, the present CRLMC is allowed and the orders dated 6.4.2009 and 16.4.2009 passed by the learned J.M.F.C., Bhubanes¬war in I.C.C. No. 1178 of 2008 are set aside. If the petitioner-Sri Prasant Kumar Raju appears before the Court below on 6.1.2010 and files such an application, the learned J.M.F.C. is directed to act in terms of the aforesaid judgment of the Hon’ble Supreme Court providing for an undertak¬ing and dispose of the same accordingly. N.B.W. issued against the petitioner shall not be executed till 6.1.2010. Urgent certified copy of this order be granted on proper application. CRLMC allowed.