The main legal point established is that the application under Section 205 of the Cr.P.C. should be allowed when the accused's personal attendance is difficult due to work at a different place, and the erroneous issuance of warrants influenced the court's decision.

JUDGMENT :

S.K. Mishra, J. - Heard learned counsel for the petitioner and the learned Standing Counsel for the State.

2. The petitioner has assailed the order dated 08.04.2015 passed by the learned S.D.J.M., Jagatsinghpur in G.R. Case No. 205 of 1996, wherein the application filed by the petitioner under Section 205 of the Cr.P.C. has been rejected.

3. The petitioner being the accused in the case was summoned to answer the charge under Sections 341, 294 and 324 of the I.P.C. Upon submission of charge-sheet, as the offences are bailable in nature, learned Magistrate issued summons to the present petitioner. On 03.07.2003, he appeared in the court and was released on bail. On 13.09.2010, the petitioner was not present and nobody took any steps on his behalf. Hence, N.B.W. was issued against the present petitioner fixing 23.02.2011 for production. On 08.04.2015, Advocate S.N. Routray filed Vakalatnama on behalf of the accused and also filed a petition under Section 205 of the Cr.P.C. to dispense with the personal attendance of the accused. After hearing learned counsel for the petitioner and the learned A.P.P., learned S.D.J.M., Jagatsinghpur has rejected the application. The learned counsel for the petitioner submitted that the petitioner has been working as a daily labourer under a Contractor at Bangalore, hence, it is difficult, time taking and expensive to appear on each date before the learned Magistrate. Hence, the application under Section 205 of the Cr.P.C. may be allowed. However, the petitioner's application was rejected on the ground that the case was lingering for production of the accused and the accused is avoiding police arrest.

4. At the outset, this Court takes note of the order dated 30.09.2010, where N.B.W. was issued against the present petitioner. Keeping in view the case of Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1, this Court is of the opinion that the learned Magistrate should have issued bailable warrant in the second instance after his appearance on summons. He has not recorded any reason for issuance of N.B.W. in a bailable case. Hence, this Court finds the procedure adopted by the learned S.D.J.M. is erroneous. Thereafter, even if the procedure adopted by the learned S.D.J.M. is accepted to be correct, the rejection of the application under Section 205 of the Cr.P.C. for the reason that it will only further linger the proceeding, this Court fails to understand how the learned S.D.J.M. intends to complete the trial of the case when the police is unable to arrest the accused and produce him before the court. The petitioner has come to the court through his Advocate only. So when the case proceeds further and the order passed by the learned S.D.J.M., Jagatsinghpur on 08.04.2014 only becomes another impediment in the process of the investigation of the case. Learned counsel for the petitioner submits that in view of the fact that the petitioner is working at a different place and it is impossible on his part to attend on each date of trial, the application filed under Section 205 of the Cr.P.C. should have been allowed.

5. Learned Standing Counsel, on the other hand, submits that since in the meantime more than five years has elapsed from the date of issuance of the warrant, the application under Section 205 of the Cr.P.C. is not maintainable.

6. Learned counsel for the petitioner submits that Patna High Court in the case of Sheela Kumar and others v. State of Bihar through Vigilance, 2009 Cri. L.J. 2675; has held that the petition filed by the accused under Section 205(1) of the Cr.P.C. cannot be rejected solely on the ground that warrants were issued to them prior to the commencement of proceeding under Section 204. The Court further held that Section 205 provides for dispensing of personal attendance of accused and permitting him to appear by his Pleader where summons is issued, if the Magistrate sees reason to do so. The work "summons" mentioned in Section 205 obviou