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2015 DIGILAW 625 (ORI)

Jagannath Mahapatra v. State of Orissa

2015-11-16

S.K.MISHRA

body2015
ORDER : S.K. Mishra, J. 1. The petitioner, a Super Class Contractor is aggrieved by the order dated 7-10-2015 passed by the learned Sub-Divisional Judicial Magistrate, Nabarangpur in I.C.C. No. 07/2014, wherein his application under S. 205 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the Code' for brevity was rejected. A I.C.C. was initiated by Debadutta Mohapatra against the present petitioner for alleged offence under Ss. 341, 420,466, 468, 471, 294 and 506 of the IPC. He was summoned to appear before the learned SDJM, Nabarangpur. He filed an application under S. 205 of the Code on 21-9-2015 to dispense with his personal attendance before the Court. The learned Magistrate held that the allegation levelled against him appears to be grave and serious in nature. He further held that the petitioner is residing at a little distance from the Court and the documents filed in support of his illness do not reveal a disease of such magnitude as to prevent him appearing from the Court to answer the allegation. Therefore, the learned Magistrate rejected his application under S. 205 of the Code and posted the case to 6-11-2015 for appearance of the parties. 2. The learned counsel for the petitioner submits that the petitioner is an elderly person, aged about 56 years. He is suffering from chronic diseases like diabetes, high blood pressure for which he is under intensive medical care since 1998. The learned counsel also submits that the petitioner is a Super Class Contractor and he has to attend his duties for timely execution of work undertaken by him. Hence, the learned counsel for the petitioner submits that the order passed by the learned Magistrate should be set aside and the petition filed by the petitioner under S. 205 of the Code should be quashed. 3. The learned counsel for the petitioner relying upon the case of Raghunath Das and others v. Hari Mohan Pani, 1988 Cri LJ 1573 contends that in a I.C.C. if petition is filed under S. 205 of the Code, the complainant has no right to be heard. It is appropriate to quote the exact word used by Hon'ble Justice S.C. Mohapatra in the aforesaid case. "3. Representation is a mode of a appearance of an accused. It is a matter between the Court and the accused. It is appropriate to quote the exact word used by Hon'ble Justice S.C. Mohapatra in the aforesaid case. "3. Representation is a mode of a appearance of an accused. It is a matter between the Court and the accused. In prosecutions initiated on police report, the Public Prosecutor has a right to be heard on the question of bail. So far as a prosecution initiated on complaint, the Magistrate while issuing summons has also power to direct the appearance of an accused through a lawyer complainant has no right to heard. He can, however, bring to the notice of the Court at any stage the facts of an accused misusing the benefit of representation for appropriate order. Accordingly, I am not inclined to issue notice to the complainant which would have the effect of delay in disposal of this revision and the prosecution shall be delayed." Thus, this Court is of the opinion that there is no necessity of issuing notice to the opposite party No. 2. This Court feels it expedient that orders can be passed after hearing the learned Addl. Government Advocate for the State. 4. The learned counsel for the petitioner further cites the reported case of Pravakar Sarangi v. State of Orissa, 2005 (II) OLR 86 , wherein this Court has allowed the application under S. 205(1) of the Code in a similar case where cognizance of the offence was taken under Ss. 420, 468, 471, 467, 120-B of the IPC. This Court in the aforesaid case has held that if personal identification of the accused is not necessary for trial of the case, if the accused is a busy public functionary or paradanashini lady, or sick or infirm person, then personal attendance of such accused can be dispensed with. Admittedly, in this case, the petitioner and the complainant were well known to each other and there is no question of identification of the accused and the same is not in dispute. The learned counsel for the petitioner undertakes that he shall not take up a plea regarding the identity of the accused during trial. 5. Admittedly, in this case, the petitioner and the complainant were well known to each other and there is no question of identification of the accused and the same is not in dispute. The learned counsel for the petitioner undertakes that he shall not take up a plea regarding the identity of the accused during trial. 5. So, a cumulative reading of facts along with case law cited, this Court is of the opinion that since the petitioner is a Super Class Contractor and he is busy in the line of work and he is also suffering from chronic diseases, on the top of it, his identification is not necessary at the trial, the learned Magistrate should be allowed the application under S. 205 of the Code. Accordingly, the CRLMC is allowed. The order dated 7-10-2015 passed by the learned SDJM, Nabarangpur in I.C.C. No. 07/2014 is hereby quashed so far as it relates to rejection of application under S. 205 of the Code. The learned Magistrate is directed to dispense with the attendance of the present petitioner in I.C.C. No. 07/2014, if a fresh petition is made in that regard. The CRLMC is disposed of. Urgent certified copy of this order be granted as per rules. Petition Allowed.