The main legal point established in the judgment is that the privilege of Section 205 Cr.P.C. can be extended to dispense with the personal appearance of the accused, taking into consideration their social status, age, and necessity for personal appearance.

JUDGMENT :

A.K. Mishra, J.

Heard the learned counsel for the petitioner.

2. In this Lis under section 482 Cr.P.C., 1973 prayer has been made to set aside the order dated 27.8.2018 passed by learned J.M.F.C., Daspalla in I.C.C. No.27 of 2018 rejecting the prayer of the petitioners under section 205 Cr.P.C., 1973

3. The brother of petitioner no.1, namely Baikuntha Pradhan (Opposite Party no.2) had filed I.C.C. No.9 of 2005 in the court of J.M.F.C., Daspalla which was sent under section 156(3) Cr.P.C., 1973 to the Daspalla police station for investigation and it was registered as Daspalla P.S. Case No.65 of 2015 which corresponds to G.R. Case No.90 of 2015. After investigation final report was submitted. Thereafter protest petition was filed which was registered as I.C.C. No.27 of 2018 in which cognizance under section 341, 294, 323, 506, 34 I.P.C. was taken and summonses were issued against the four accused persons including present three petitioners.

4. Accused Basanta Pradhan appeared in the court and was granted bail on 27.08.2018. The prayer of accused Banamali, his wife Nirmala and wife of accused Basanta, namely Rashmita (petitioner nos.1 to 3) were rejected on the ground that they were under the jurisdiction of the court and there was no such impediment for their first appearance. The said order is impugned in this proceeding with a prayer to direct learned J.M.F.C., Daspalla to extend the privilege under section 205 Cr.P.C., 1973 in favour of the petitioners.

5. Learned counsel for the petitioners relied upon a decision reported in (2017) 67 OCR 33, Benjamin Roul v. Sajal Das. In that decision it has been reiterated that the social status, age and necessity for personal appearance are required to be considered for dispensing with personal attendance under section 205 Cr.P.C., 1973.

6. In the case at hand, the accused persons are none else than the brothers and in-laws of the complainant. Both the parties are in litigating terms. Petitioner no.1 is a government servant working as Jr. Clerk at District Education Office, Nayagarh and petitioner nos.2 and 3 are ladies. The offence alleged is triable by Magistrate. One of the accused is already released on bail appearing on the same day. As per the decision reported in (2018) 4 SCC 608, Rameshwar Yadav & Ors. v. State of Bihar & Anr., "a Magistrate under Section 205, sub-Section (2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides".

7. The impugned order does not disclose the reason for insisting the physical presence of the petitioners for which privilege of Section 205 Cr.P.C., 1973 could not be extended. A balance is to be struck between privilege affordable and liability imposable for the requirement of presence during trial.

8. Regards being had to the relationship between the parties and their requirement in day to day household affairs, the insistence of personal attendance should not have been made in the case at hand. In that view of the matter, the impugned order is not sustainable. Accordingly the same is hereby set-aside. Learned Magistrate shall dispense with the personal appearance of petitioners after obtaining undertaking from them as required under section 205 Cr.P.C., 1973

9. The CRLMC stands disposed of.