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1999 Supreme(Ori) 356
IN THE HIGH COURT OF ORISSA
P.K. Misra, J.
DR. SANTANU KR. PARIDA - APPELLANT
Versus
STATE OF ORISSA AND ANOTHER - RESPONDENT
Criminal Miscellaneous Case No. 892 of 1996
Decided On : 06-07-1999
Deepali Mahapatra, S. Parida and B.K. Nayak, for the Appellant; Addl. Standing Counsel (OP-1), for the Respondent
The power under Section 205(1) of the Cr.P.C. to dispense with the personal appearance of an accused can be exercised at any stage of the proceedings, and not just at the stage of issuing summons.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 205(1) - DISPENSING WITH PERSONAL APPEARANCE - POWER OF THE COURT - SCOPE AND EXTENT - INTERPRETATION - COURT'S DISCRETION - FACTORS TO BE CONSIDERED - DELAY IN DISPOSAL OF CRIMINAL CASE - QUASHING OF PROCEEDINGS - PRINCIPLES GOVERNING.
Fact of the Case:
The petitioner filed an application under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash a criminal proceeding pending before the Sub-Divisional Judicial Magistrate, Puri. The petitioner argued that there was undue delay in the disposal of the case and that the Magistrate had erred in rejecting his application under Section 205(1) of the Cr.P.C. for dispensing with his personal appearance.
Finding of the Court:
The court held that the Magistrate had erred in rejecting the petitioner's application under Section 205(1) of the Cr.P.C. and that the petitioner was entitled to have his personal appearance dispensed with. The court also held that the petitioner was entitled to file an application before the Magistrate for recalling the order taking cognizance or for dropping the criminal proceeding, and that the Magistrate should consider such an application in accordance with law.
Issues: 1. Whether the Magistrate erred in rejecting the petitioner's application under Section 205(1) of the Cr.P.C. for dispensing with his personal appearance? 2. Whether the petitioner was entitled to have his personal appearance dispensed with? 3. Whether the petitioner was entitled to file an application before the Magistrate for recalling the order taking cognizance or for dropping the criminal proceeding?
Ratio Decidendi: 1. The court held that the Magistrate had erred in rejecting the petitioner's application under Section 205(1) of the Cr.P.C. because: a. The power under Section 205(1) of the Cr.P.C. can be exercised at any stage of the proceedings, and not just at the stage of issuing summons. b. The petitioner had not deliberately avoided the process of the Court or evaded the execution of the warrants. c. The Magistrate had not come to the conclusion that the petitioner had absconded or concealed himself. 2. The court held that the petitioner was entitled to have his personal appearance dispensed with because: a. The petitioner had not deliberately avoided the process of the Court or evaded the execution of the warrants. b. The petitioner had filed an application under Section 205(1) of the Cr.P.C. for dispensing with his personal appearance. 3. The court held that the petitioner was entitled to file an application before the Magistrate for recalling the order taking cognizance or for dropping the criminal proceeding because: a. The petitioner had not deliberately avoided the process of the Court or evaded the execution of the warrants. b. The petitioner had filed an application under Section 205(1) of the Cr.P.C. for dispensing with his personal appearance.
Final Decision: The court disposed of the criminal miscellaneous case and directed the petitioner to appear before the Magistrate on or before 31st July, 1999. The court also directed the Magistrate to consider the petitioner's application for bail and to reconsider the application under Section 205(1) of the Cr.P.C. if the Magistrate decided to proceed with the case.
JUDGMENT :
P.K. Misra, J. - The accused-petitioner has filed this application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C") for quashing a criminal proceeding numbered as G.R. Case No. 1394/98 pending before the Sub-Divisional Judicial Magistrate, Puri, under the following circumstances :
2. It appears that the aforesaid G.R. case was registered on the basis of FIR lodged by one Subal Jena alleging commission of offences Under Sections 279 and 337, Indian Penal Code (in short, the "IPC"). Alter investigation, charge-sheet was filed and the Sub-Divisional Judicial Magistrate, Puri, took cognizance against the present petitioner on 6.2.1989 and issued summons against the petitioner. From the order-sheet it appears that the summons issued on several dates remained unserved and the service returns did not come on many occasions. Ultimately the Magistrate issued bailable warrant which also remained unexecuted and thereafter Non-Bailable Warrant was issued which was again not executed and the Court issued coercive process Under Sections 82 and 83, Cr.P.C. At that stage, the present petitioner appeared through his lawyers and filed application u/s 205, Cr.P.C. for dispensing with the personal attendance and for recalling the N.B.W. and the process issued Under Sections 82 and 83. Cr.P.C. The said application was rejected on 19.3.1996 on the ground that the petitioner having been released on bail by the police must have been aware of the pendency of the case and as such his absence for such long period could not be condoned. The prayer for dispensing with personal appearance of the petitioner u/s 205(1), Cr.P.C. was also rejected on the ground that N.B.W. having been already issued, there is no scope for invoking power u/s 205. It was further directed that the petitioner should appear on the next date so that the bail application can be considered in the back-ground of long delay in responding to the process of the Court. After the aforesaid order was passed, the petitioner has filed this application u/s 482, Cr.P.C. for quashing the criminal proceeding mainly on the ground of undue delay in disposal of the criminal case.
3. In support of the application, the petitioner has relied upon the decision of the Supreme Court reported in 7996 (I) OLR 584 (SC) ("Common Cause" A Registered Society through its Director v. Union of India and Ors.). The learned counsel for the petitioner has alternatively submitted that in case the proceeding is not quashed, the personal appearance of the petitioner should be dispensed with.
4. On perusal of the records, it appears that the summons issued by the trial Court from time to time had not been served and, in fact, the service returns were not back. Similarly, bailable warrant as well as non-bailable warrant issued against the petitioner had also remained unexecuted. From the lower Court records, it is not established that the petitioner had, in fact, avoided the process of Court after receiving the summons, or had evaded the execution of the warrants in any manner. In the absence of any categorical material, it was not open to the Magistrate to jump to a conclusion that the petitioner had deliberately avoided the process of Court and as such, issuance of N.B.W. or issuance of process under Sections 82 and 83, Cr.P.C. was uncalled for. Before taking any steps u/s 82, Cr.P.C. the Court has to be satisfied that the person against whom warrant had been issued had absconded or was concealing himself. In the present case, the Sub-Divisional Judicial Magistrate has nowhere come to the conclusion that the petitioner had. in fact, absconded or concealed. Since there was no justification for taking steps u/s 82, there was no scope for invoking the power u/s 83, Cr.P.C. and as such the action of the Sub-Divisional Judicial Magistrate in taking steps under Sections 82 and 83, Cr.P.C. cannot be sustained.
5. The Magistrate rejected the application u/s 205, Cr.P.C. on the groun
