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2012 DIGILAW 38 (ORI)

Sri Dayanidhi Rout v. State

2012-01-24

B.K.NAYAK

body2012
ORDER 24.01.2012 –– Heard learned counsel for the petitioners and learned Additional Government Advocate. Perused the records. Order dated 26.04.2010 passed by the learned S.D.J.M., Balasore in C.T. No.172 of 2009 rejecting the petitioners application under Section 205, Cr.P.C. is assailed in this application under Section 482, Cr.P.C. The impugned order shows that cognizance has been taken for the offences under Sections 341/323/294/347/379/354/506/34 of the I.P.C. and the petitioners, who are the accused persons, are released on bail by surrendering before the learned S.D.J.M., Balasore in pursuance of the order of this Court passed in BLAPL No.9902 of 2009. The petitioners filed an application under Section 205, Cr.P.C. before the learned S.D.J.M., Balasore for dispensing with their personal appearance in Court, which has been rejected on the ground that the offences involved moral turpitude. Learned counsel for the petitioners submits that the petitioners are residing at a distance of 50 to 60 Kms from the Court of the learned S.D.J.M., Balasore and that keeping in view the minor nature of offences a liberal view should be taken and the personal appearance of the petitioners be exempted under Section 205, Cr.P.C. It is also his submission that some of the• accused persons are ladies, whose appearance in Court on all the dates should not be insisted upon. He also submits that identity of the accused persons (petitioners) is not in question and that the prosecution arises out of civil dispute and that exemption of the petitioners from personal appearance will not affect the trial. Learned Additional Government Advocate, on the other hand, submits that personal appearance of accused persons is the normal rule and exemption is an exception which would be granted only if there are compelling circumstances, such as where the accused persons are old and infirm persons or women, and that the offences are not very serious in nature. Even though the provision under Section 205, Cr.P.C. is discretionary it is trite that the power is to be exercised liberally, particularly in case of 'Purdanashin' ladies, old infirm persons and busy public functionaries, inasmuch as under Sub-section (2) of Section 205, Cr.P.C. in case of necessity of personal appearance the Court can call upon for the same. Even though the provision under Section 205, Cr.P.C. is discretionary it is trite that the power is to be exercised liberally, particularly in case of 'Purdanashin' ladies, old infirm persons and busy public functionaries, inasmuch as under Sub-section (2) of Section 205, Cr.P.C. in case of necessity of personal appearance the Court can call upon for the same. Personal appearance of an accused in a criminal trial is the rule and exemption from personal appearance is the exception which can be resorted to in a suitable case in exercise of sound judicial discretion but where the offence involves moral turpitude and is of grievous nature prescribing considerable length of substantial sentence, the Court while exercising discretion shall take into consideration the totality of the circumstances of the case. Whether the discretion should be exercised or not, no hard and fast rule can be prescribed. (See 1994 (II) OLR 537; Bikram Kumar Routray v. State of Orissa, (2001) 21 OCR 574; Prasanna Kumar Barada and another v. State of Orissa, 85 (1998) C.L.T. 372; Kamaljeet Singh Ahulwalia v. State of Orissa and 1999 (II) OLR 361; Surojit Sen (In Cr. Misc. Case No.882/97), Sanjaya Singh (in Cr. Misc. Case No.987/96) v. Sanatan Behera (In both). Except stating that the offences involved moral turpitude, the learned S.D.J.M. has passed the impugned order without taking into consideration the totality of the circumstances of the case. Considering the nature of offences alleged and the fact that there is civil dispute between the parties that has led to the alleged occurrence and that identity of the accused is not in question and that some of the petitioners are women, I am of the view that prayer for exemption from personal appearance of the petitioners in terms of Section 205 (1), Cr.P.C. should have been allowed, and accordingly I allow the same. The petitioners are exempted from personal appearance in the aforesaid C.T. Case No.172 of 2009. It is, however, open to the learned S.D.J.M., Balasore/trial Court to resort to Sub-section (2) of Section 205, Cr.P.C. for personal appearance of the petitioner (s) as and when such occasion arises. The CRLMC is accordingly disposed of. Urgent certified copy of this order be granted on proper application. CRLMC disposed of.