The court emphasized the duty to consider personal circumstances in applications for exemption from attendance, reinforcing the principle that each case requires a thorough evaluation of the merits.

JUDGMENT

26th April, 2023 SASHIKANTA MISHRA, J.

Both these applications, filed under Section 482 of Cr.P.C. are directed against the common order passed by learned Special C.J.M. (CBI), Bhubaneswar in S.P.E. No. 02 of 2020 on 06.12.2022 whereby the petition filed by the petitioners under Section 205 of Cr.P.C. seeking exemption from personal attendance were rejected.

2. The facts of the case, relevant only to decide the present applications are that both the petitioners along with one Vijay Kumar Patodia are accused persons in the aforementioned case before the court below for alleged commission of offences under Sections 120- B/420/467/468/471 of IPC. The said case was registered on the basis of source information regarding the involvement of the accused persons in the alleged offences. Upon completion of investigation, charge sheet has been submitted keeping the investigation open under Section 173(8) of Cr.P.C. It is significant to note that both the petitioners were not arrested during investigation. By order dated 16.01.2020, the Court below directly issued NBW against the petitioners. Both the petitioners however appeared through their lawyer and filed petitions on 20.10.2020 under Section 205 of Cr.P.C. After hearing the parties, the court below by order dated 06.12.2022 rejected the petition.

3. Heard Mr. Ashutosh Mishra, learned counsel for the petitioners and Mr. Sarthak Nayak, learned counsel for the CBI.

4. Mr. Mishra has argued that the court below committed manifest illegality in directly issuing NBW against the petitioners at the first instance despite the fact that they had not been arrested during investigation. Moreover, the petitioners have made out a good case for grant of exemption from personal attendance inasmuch as the petitioner-Shyam Sundar Patodia is an old man aged about seventy years and the petitioner-Manju Patodia is also an old pardanashin lady aged about sixty years. The court below, instead of considering the grounds on which the prayer for exemption was made, took into account the nature of the alleged offences and the fact that NBW/A had been issued against them, rejected the applications.

5. Mr. Sarthak Nayak, on the other hand, submits that even though the petitioners were not arrested during investigation yet investigation is still open and therefore, it would not be proper to exempt the petitioners from personal attendance in the Court.

6. Admittedly, the petitioners were not arrested during investigation. In the case ofAman Preet Singh vs. Republic of India (CBI) through the Director (Criminal Appeal No.929 of 2021, decided on 02.09.2021), the Apex Court held that where the accused has not been arrested during investigation or not produced in custody is sufficient to entitle him to be released on bail. Moreover, the fact that only because as an NBW/A has been issued cannot be ground to reject the application under Section 205 of Cr.P.C. as held by this Court inDebasis Samantaray vs. State of Orissa and another, reported in 2003 (II) OLR 219. It is further seen that the petitioners had cited specific grounds for exemption from personal attendance. As already stated, the petitioner-Shyam Sundar Patodia sought for exemption on the ground of his old age, i.e. seventy years as also of his personal ailments. Similarly, Manju Patodia sought for exemption on similar ground. The court below has not considered such grounds at all. In the case ofSri Rameshwar Yadav & others vs. State of Bihar & Anr., reported in (2018) 4 SCC 608 , the Apex Court held that the Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. Thus, it is the duty of the court to consider the grounds cited by the accused seeking exemption from personal attendance. This Court finds that the Court below appears to have been swayed away by the so-called gravity of the offences allegedly committed by the petitioners without consideri