Personal appearance of the accused in a criminal trial is the normal rule and exemption from personal appearance is an exception which can be resorted to in suitable cases by due exercise of judicial discretion.

P. G. TRIPATHY, J.

( 1 ) HEARD learned counsel for the petitioners, learned counsel for the informant the learned Addl. Standing Counsel.

( 2 ) THESE two petitions under S. 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') have been filed challenging legality and correctness of the order dt. 3-11-1997 passed by the S. D. J. M. , Bhubaneswar in G. R. Case No. 867 of 1997 and this common order will abide the result in both the Criminal Misc. cases.

( 3 ) PETITIONERS are accused in G. R. Case No. 867 of 1997 of the Court of S. D. J. M. , Bhubaneswar. Cognizance of the offences u/ss. 420/120-B, I. P. C. has been taken on the allegation of cheating to the tune of lakhs of rupees in connection with a mining dealing. On the basis of the information lodged by the complainant police investigated into the case and submitted charge-sheet against the petitioner Maitri Shukla and on that basis on 13-5-1997 cognizance was taken. Complaint filed a protest petition in which an inquiry was conducted u/s. 202 of the Code and vide order dated 21-8-1997 cognizance for the aforesaid offences was taken against both the petitioners. After taking cognizance, order was passed by the learned S. D. J. M. to "issue summons to both the accused" fixing 30-9-1997 for their appearance. Before the process could be issued, complainant filed a petition to issue N. B. W. A. against the petitioners on various grounds including the ground that they may tamper with the evidence and that they would avoid to appear in the Court. When the petition was pending consideration, on 30-9-1997 both the petitioners entered appearance through counsel and filed petitions u/s. 205 of the Code. Petitioner-Maitri Shukla had advanced the grounds of old age, ailment and treatment at Rourkela whereas petitioner-Kamaljeet Singh Ahluwalia had taken the stand of old age, ailment as well as staying at a distant place i. e. Barbil. Both the petitions were heard and rejected by learned S. D. J. M. vide the impugned order. Maitri Shukla's petition was rejected on the grounds that she is not a Paradanashin lady and having been shown to be a resident of Unit-III, Bhubaneswar the plea of residing and undertaking treatment at Rourkela gives rise to suspicion. Kamaljeet Singh Ahluwalia's petition was rejected on the grounds that plea of illness and stay at a distant place are not sufficient grounds. It was also observed by learned S. D. J. M. that keeping in view the nature of allegations, gravity of the offences and the principle of law in criminal trial relating to personal appearance, he was not inclined to allow the petitions u/s. 205 of the Code. The case was then posted to 17-12-1997, 3-1-1998 and 12-1-1998 directing for personal appearance of the petitioners and they sought for time on one ground or other. On 12-1-1998 adjournment was sought for on the ground that the petitioners have challenged correctness of the order dated 3-11-1997 in these two petitions. That ground was not treated as sufficient and order was passed to issue N. B. W. A. That is the whole background fact.

( 4 ) LEARNED counsel for the petitioners citing a series of decisions argues that the discretionary power to allow the representation was not considered judiciously and liberally and the S. D. J. M. rejected their prayer on flimsy grounds. He also argues that the complainant has no locus standi to contest this matter in view of the ratio in the case of Sudhakar Das v. Nirupama Mishra (1986) 62 Cut LT 445. Learned counsel for the complainant, on the other hand, supports the impugned order and argues that the petitioners are avoiding to appear in the Court, though in a criminal trial normal rule is regarding recording of evidence in presence of the accused. Learned Addl. Standing Counsel supporting the aforesaid contention of the complainant further contends that accused persons having applied for representation u/s. 317, they cannot persue relief u/s. 205 of the Code.

( 5 ) AS regards locus stand