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2011 DIGILAW 594 (ORI)

Sri Rajkishore Joshi v. State of Orissa

2011-12-12

M.M.DAS

body2011
ORDER 12.12.2011 - Heard learned counsel for the parties. This application under Section 482 Cr.P.C. has been tiled against the orders passed in an application 205 Cr.P.C., which was rejected both by the trial Court as well as the revisional Court on the ground that earlier an application under Section 205 Cr. P.C. filed by the petitioner was rejected. On rejection of such application as they did not appear, N.B.W. was issued against them. On the subsequent date again an application under Section 205 Cr.P.C. was filed. The learned revisional Court after noting the facts of the case taking note of the decision in the case of Damodar v. State, 2011 Criminal Law Journal 296 that the power under Section 205 Cr.P.C. is discretionary in nature and once such discretion has been judiciously exercised, the same cannot be interfered with in revision. By applying such discretion, the application under Section 205 Cr.P.C. having been once rejected, the second application cannot be maintained. Learned counsel for the petitioner relies upon the decision in the case of Debasis Samantaray 2003 (II) OLR 219 v. State of Orissa and another, (2003) 25 OCR 594 , where this Court dealing with a case under Section 138 of the N.I. Act referring to an earlier decision of this Court, observed that the power under Section 205 (1) Cr.P.C. can be exercised by a Magistrate not only at the stage of issuance of summons to the accused, but also at subsequent stage even after issuance of N.B.W. It was further observed that law is no more res integra that even if an application under Section 205 Cr.P.C. is rejected at an earlier stage, such petition can be allowed at a subsequent stage. In the present case, the petitioners are Directors of a Private Ltd. Company. Learned counsel for the petitioners submits that the petitioners have been engaged in different jobs and are residing outside the jurisdiction of Rourkela and it is difficult on their part to appear on each date of the case as they have to move through out the State in connection with their business for which an application under Section 205 Cr.P.C. has been filed and the Court below could not have rejected the same in view of the aforesaid decision of this Court, solely on the ground that an application under Section 205 Cr.P.C. was earlier rejected. While accepting such contention, I find that the Courts below have not dealt with the grounds on which the prayer for allowing the application under Section 205 Cr.P.C. was made and mechanically rejected the same on the ground that earlier an application under Section 205 Cr.P.C. was rejected. I, therefore, set aside the orders dated 23.7.2011 passed by the learned S.D.J.M., Panposh in 2(C) C.C. No.52 of 2004 as well as the judgment dated 12.9.2011 passed by the learned Addl.Sessions Judge, Rourkela in Criminal Revision No.19 of 2011. The prayer for exempting the petitioners from appearance in person under Section 205 Cr.P.C. stands allowed. The Court below while proceeding with the trial of the case whenever requires such petitioners to appear before it may by specific order directed the petitioners or any of them to appear in person before it. The CRLMC is accordingly disposed of. Urgent certified copy of this order be granted on proper application. CRLMC disposed of.