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2018 DIGILAW 327 (ORI)

Janaki Patnaik v. State of Odisha

2018-03-29

S.K.MISHRA

body2018
ORDER 29.3.2018. Heard learned Counsel for the petitioner and learned Additional Government Advocate. In this case, petitioner assails the order dated 31.03.2017 passed by the learned S.D.J.M. (S), Cuttack in 1 CC No.97 of 2008 rejecting the application filled by the petitioner, who is the accused No.1 in 1 C.C. case to dispense with her appearance under Section 205 of Cr.P.C. on the ground that she is a lady and an employee of the Bank, at present working as Asst. General Manager in Head Office of the Urban Cooperative Bank Limited, Cuttack. It is not possible on her part to attend the Court on each date of posting. However, her application has been rejected by the learned S.D.J.M. (S), Cuttack on the ground that the offence alleged against the petitioner is grievous and serious in nature. The offence under Section 409 of the IPC is punishable with imprisonment for life. Also the application under Section 205 of the Cr.P.C. has been rejected so far as other accused persons are concerned, the same was allowed. The 1st matter is taken up without issuing notice to the opposite party No.2 i.e. complainant before the lower court in view of the ratio decided by this Court in the reported case of Raghunath Das and others v. Hari Mohan Pani, (1988) 1 OCR 136, wherein at paragraph- 3 , this Court has held as follows : “Representation is a mode of 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 complainant, the Magistrate while issuing summons has also power to direct the appearance of an accused through a Lawyer without personally appearing. Thus, complainant has no right to be 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.” So, it is not necessary to issue notice to the opposite party No.2. This Court in the matter of Basudev Purohit vs. Republic of India and another, (1995) 9 OCR 110 has given the guidelines to exercise discretion. It is appropriate to quote the same, appearing at paragraph-8. “ ‘Discretion’ means use of private and independent thought. This Court in the matter of Basudev Purohit vs. Republic of India and another, (1995) 9 OCR 110 has given the guidelines to exercise discretion. It is appropriate to quote the same, appearing at paragraph-8. “ ‘Discretion’ means use of private and independent thought. When anything is left to be done according to one’s discretion the law intends it to be done with sound discretion and according to law. Discretion is discerning between right and wrong, and one who has power to act at discretion is bound by rule of reason. Discretion must not be arbitrary. The very term itself stands unsupported by circumstances, imports the exercise of judgment, wisdom and skill as contra distinguished from unthinking folly, heady violence or rash injustice. When applied to a Court of Justice, it means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful but, legal and regular. Discretion must be exercised honestly and in the spirit of the statute. It is the power given by a statute to make choice among competing considerations. It implies power to choose between alternative courses of action. It is not unconfined and vagrant. It is canalized within banks that keep it from overflowing.” In the case of Rudrapanki Dhurjati Devara alias Dhurjati Devara vs. Rama Chandra Subudhi (1988) 1 OCR 108, this Court has held that the Section 205 of the Cr.P.C. confers wide discretion on the Magistrate to dispense with the personal attendance of the accused and permit him to appear through his pleader, but that discretion must be exercised judiciously and not arbitrarily. This Court further held that the accused was working as a Manager of a Bank and for him to remain absent from the Bank on each date of posting must be held to be a good ground for allowing him to appear through a pleader and to dispense with his personal attendance until the Magistrate requires his personal attendance in the Court in the interest of the case. In this case, the petitioner is working as a Head of a Branch of the Bank, who has some heavy and onerous responsibilities. So, it is not possibility for her part to appear in Court on each date of posting. In this case, the petitioner is working as a Head of a Branch of the Bank, who has some heavy and onerous responsibilities. So, it is not possibility for her part to appear in Court on each date of posting. So, this Court is of the opinion that in view of the discussions made above, the learned Magistrate should have allowed her application. Accordingly, CRLMC is allowed. The order dated 31.03.2017 passed by the learned S.D.J.M. (S), Cuttack in 1 C.C. No.97 of 2008 so far as it relates to rejection of the application filed by the petitioner under Section 205 of the Cr.P.C. concerned, is hereby quashed. Her personal appearance be dispensed with and she be allowed to be represented through a counsel till her appearance is necessary by the court for the purpose of trial or in the interest of justice. Urgent certified copy of this order be granted as per rules. CRLMC allowed.