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2017 DIGILAW 1302 (ORI)

Subhashree Mohapatra v. Sonal Patel

2017-11-13

B.K.NAYAK

body2017
ORDER 13.11.2017 Heard learned counsel for the petitioner. 2. Petitioner challenges the order dated 26.10.2016 passed by the learned SDJM, Bhubaneswar in 1. C.C. No. 2217 of 2012 rejecting the petitioner’s application to proceed with the trial of the said complaint case. 3. The petition was filed by the petitioner before the learned SDJM, Bhubaneswar in the following circumstances:- The petitioner is the complainant in the aforesaid complaint case and the accused-Opposite Party filed a petition U/s. 205 of CrPC, which was rejected by the learned SDJM, Bhubaneswar. Such rejection order was assailed by the accused in this Court in CRLMC No. 3853 of 2014. The said CRLMC was disposed of on 29.04.2016 allowing the petition of the accused U/s. 205 of CrPC subject to condition that she shall furnish undertaking in the Court below to the effect that she shall not dispute her identity and that she shall appear personally before the Court below as and when required by it. It is alleged by the present petitioner-complainant that the accused did not furnish any undertaking as directed by this Court in CRLMC No. 3853 of 2014 even though more than a year passed by now. In such circumstance, the petitioner filed an application before the learned SDJM, Bhubaneswar for issuance of NBW against the accused and to proceed with the trial. 4. The petitioner’s application has been rejected by the learned SDJM, Bhubaneswar stating that this Court while disposing of CRLMC No. 3853 of 2014 has not fixed any time limit for furnishing of undertaking by the accused in terms of the order, nor directed for issuance of NBW against the accused. 5. When the petition U/s. 205 of CrPC was allowed with certain conditions it was incumbent on the accused to comply with the conditions promptly even though no time limit was fixed by the Court. And the accused could not take the plea that since time limit was not fixed for fulfilling the condition he/she is at liberty to fulfill the condition whenever he/she chooses. And the accused could not take the plea that since time limit was not fixed for fulfilling the condition he/she is at liberty to fulfill the condition whenever he/she chooses. Since appearance of the accused in Court is necessary to proceed further with the criminal trial unless personal appearance is exempted, any condition fixed by the Court for availing the exemption from appearance in Court by the accused should be fulfilled promptly within a reasonable time, failing which the Court would be within its power to issue process to the accused ignoring the order U/s. 205 of Cr.PC. 6. It is more than a year since the CRLMC filed by the Opposite Party-accused was disposed of allowing Sec. 205, CrPC petition filed in the complaint case with condition for furnishing the undertaking, but the Opposite Party- accused has failed to furnish the undertaking and also avoided to appear in the trial Court. In the circumstances, this Court directs that the order passed in CRLMC No. 3853 of 2014 allowing the Opposite Party’s petition U/s. 205 of CrPC be treated to have lost its force and the learned SDJM has power to issue process for compelling appearance of the accused in Court. Hence, ordered that the learned SDJM, Bhubaneswar shall take effective and adequate steps for procuring the attendance of the accused and proceed with the trial of the complaint case. The CRLMC is accordingly disposed of. Urgent certified copy of this order be granted on proper application. CRLMC disposed of.