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2017 DIGILAW 1431 (ORI)

Manu Charan Pattnaik v. Purandar Moharana

2017-12-11

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. This is an application under section 482 of Cr.P.C. filed by the petitioner Manu Charan Pattnaik challenging the impugned order dated 22.12.2004 passed by the learned S.D.J.M., Sonepur in I.C.C. Case No. 08 of 2001 in rejecting the petition under section 205 of Cr.P.C. filed by the petitioner to dispense with his personal attendance. 2. The opp.party Purandar Moharana filed a complaint petition in the Court of learned S.D.J.M., Sonepur stating therein that he took the commander jeep bearing registration No. OR-04B-0474 from Madhukan Finance Pvt. Ltd., 74, Satyanagar, Bhubaneswar under hire purchase agreement on 16.02.2000. On 05.07.2000 the driver of the commander jeep parked the vehicle and left for his house after handing over the key of the jeep to the complainant. On the next day morning, the complainant found that the jeep had been stolen away by somebody. The petitioner is the Director of Madhukan Finance Pvt. Ltd. and the complainant came to know the petitioner had sent his men to seize the jeep from the possession of the complainant. It is further stated that by such illegal act, the complainant has sustained a loss of Rs. 2,93,885/-. 3. Basing on such complaint, the learned Magistrate has been pleased to take cognizance of the offence under section 379 of the Indian Penal Code and issued process against the petitioner. On receipt of the summons, the petitioner filed a petition under section 205 of Cr.P.C. to dispense with his personal attendance on the ground that the he is staying at a far off place and he is a businessman and has his trade all over the State and his personal appearance in the Court would create immense difficulty for him. 4. The learned S.D.J.M., Sonepur has been pleased to hold that the identity of the petitioner is in dispute and unless he is properly identified in Court, the case of the complainant would have no merit and therefore, for the purpose of proper identification before charge and after charge, his appearance in the Court is always required and is indispensable. 5. In spite of valid service of notice, the opp. party has not entered appearance. 6. Mr. 5. In spite of valid service of notice, the opp. party has not entered appearance. 6. Mr. Bijaya Kumar Mishra, learned counsel appearing for the petitioner contended that the petitioner is the Director of M/s. Madhukan Finance Pvt. Ltd. and he is required to travel inside and outside of Orissa in connection with his business and it is not possible on his part to remain present on each and every date when the case would be fixed in the Court below. It is further contended that the complainant had taken a vehicle under a hire purchase scheme from Madhukan Finance Pvt. Ltd. in the year 2000 and to repay the installment dues of the finance amount, cheques were issued by him which were bounced due to insufficiency of funds in his account and in that connection, I.C.C. Case No. 174 of 2001 was filed by Madhukan Finance Pvt. Ltd./opp. party before the learned S.D.J.M. (Sadar), Cuttack against the complainant. Learned counsel further contended that when the petitioner was ready and willing to appear in Court as and when necessary, the learned Magistrate should not have rejected the petition filed by the petitioner under section 205 Cr.P.C. without any cogent reason. 7. Law is well settled that the power under section 205 of Cr.P.C. has to be exercised in regard to the circumstances of the case, condition of the accused, the necessity for his personal attendance etc. Even no formal petition is necessary. At the threshold, at the time of issuance of summons, the Magistrate can on his own dispense with the personal attendance of the accused. Personal appearance is a rule in criminal case of a serious nature involving moral turpitude. Court should consider the nature of aberration alleged, prima facie material for acceptance of such allegation, possibility of malafide allegation and prejudice, if any, likely to be caused if personal attendance is not made. Simultaneously, the Court has to weigh the inconvenience likely to be caused to the accused if he is required to remain absent from his vocation, profession, trade, occupation and calling for attendance in Court against prejudice likely to be caused if he does not appear in Court. The Court has to examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. The Court has to examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. No hard and fast rule or straight jacket formula can be laid down as to where exemption shall be granted and when it is to be refused. It all depends upon the facts and circumstances of each case and the wisdom of the Court. In the background of the case, it appears that there was dispute between the parties which is basically civil in nature relating to the non-payment of dues by the complainant in connection with the purchase of the Commando Jeep which was under the finance of the petitioner’s Finance Company. Therefore, I find no justification on the part of the Court to reject the petition under section 205 of Cr.P.C. In the case of M/s. Bhaskar Industries Ltd. -Vrs.-M/s. Bhiwani Denim and Apparels Ltd. and ors. reported in (2001) 21 Orissa Criminal Reports (SC) 452, it is held as follows:- “17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such 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 the further steps in the case. However, 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. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. xx xx xx xx 19. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. xx xx xx xx 19. The position, therefore, bogs down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons, the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with, the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.” 7. So far as identity part of the petitioner is concerned, if it is required, the learned Magistrate can always ask the counsel for the petitioner to ensure the personal attendance of the petitioner before him. Learned counsel for the petitioner submits that the petitioner has got no objection to appear before the Court, if at any point of time, necessary order in that respect is passed by the Court. Therefore, I am of the view that the grounds of rejection of the application under section 205 of Cr.P.C. filed by the petitioner vide impugned order dated 22.12.2004 passed by the learned S.D.J.M., Sonepur is erroneous and not sustainable in the eye of law and accordingly, the same is hereby set aside. 8. Therefore, I am of the view that the grounds of rejection of the application under section 205 of Cr.P.C. filed by the petitioner vide impugned order dated 22.12.2004 passed by the learned S.D.J.M., Sonepur is erroneous and not sustainable in the eye of law and accordingly, the same is hereby set aside. 8. The learned Magistrate shall dispense with the personal appearance of the petitioner on giving an undertaking by him to the satisfaction of the Magistrate that he would not dispute his identity as a particular accused in the case and the Counsel on his behalf would remain present in the Court when the case will be taken up for evidence or otherwise and that the petitioner has no objection in taking evidence in his absence and further that he would attend the Court as and when his personal attendance is required by the Court. Accordingly, the CRLMC is disposed of.