The court assessed the discretion of Magistrates under Section 228 regarding personal attendance exemptions for accused based on circumstances.

ORDER

Order No. 28.07.2025

01. 1. Heard learned counsel for the Parties.

2. The legality, propriety and correctness of the order dated 22.04.2025 passed by the learned Special Judge, Vigilance, Bargarh in CTR Case No.17/49 of 2024 has been called in question in this Revision, wherein the learned court having considered the application of the Petitioners under Section 228 of the BNSS, 2023 (205 of the Cr.P.C, 1973)

pleased to dismiss the same.

3. The background facts of the case are that on the basis of the report dated 18.05.2016 of the Deputy Superintendent of Police, Vigilance, Bargarh Unit, the FIR in connection with Sambalpur Vigilance P.S. Case No.44 of 2016 was registered against the Petitioners. During the course of the investigation as a prima facie case was made out, the charge-sheet was submitted implicating the Petitioners in the offence under Section 13(2), r/w. Section 13(1)(d) of the P.C. Act and under Section 120(B) of the IPC. On the summons being issued against the Petitioners for their appearance in the Court, the Petitioners moved an application under Section 228 of the BNSS (205 of the Cr.P.C) praying to dispense with their personal appearance before the court during trial. The main ground propounded for dispensation of their personal appearance in the court was that the Petitioners are the permanent residents of Konthamuru Rural District, East Godavari in the State of Andhra Pradesh and it may not be convenient for them to attend the court from such a distance on each date. Besides the above, they also took the ground that one of the Petitioners is female being aged about fifty (50) years and the other Petitioner is aged about eighty (80) years and intended to be represented through their lawyer. The learned court turned down the prayer of the Petitioners on extraneous grounds without application of judicial mind and did not even pass a reasoned order while exercising the discretion in rejecting the prayer of the Petitioners.

4. The learned counsel for the State (Vigilance) on the other hand, vehemently opposed the contentions of the learned counsel for the Petitioners and stated that the Petitioners belong to the district of Bargarh in Odisha and would face no inconvenience in attending the court in person. He further contended that the Petitioners have never appeared before the court till date.

5. Section 228 of the BNSS, 2023 (205 of the Cr.P.C, 1973) reads as follows:-

“228. Magistrate may dispense with personal attendance of accused.

(1)Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his advocate.

(2)But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.”

6. Perusal of the case record reveals that the Petitioners include one female aged about 50 years and the other one is a male aged about 80 years. The offences alleged against the Petitioners are primarily based on documentary evidence and the physical presence of the Petitioners would no way help the prosecution to improve their case. There is also no material on record suggesting dispute with regard to the identity of the accused persons. It is seen from the impugned order that the learned court while exercising the discretion in rejecting the prayer, did not take into consideration the social status, age and necessity for personal appearance of the Petitioners, while appreciating the cause. Normally, personal presence of the accused persons more so in cases of present nature need not be insisted upon unless it is indispensable for adjudication in order to confront any document. Conversely, the court is very much empowered