JUDGMENT
C.R. Pal, J.
1. The petitioner being aggrieved by the order dated 6.11.1997 passed by the learned S.D.J.M. (Sadar), Cuttack in G.R.Case No. 2085 of 1996 rejecting his prayer to dispense with his personal attendance in terms of Section 205 Cr.P.C. has come up for quashing the impugned order and for a direction to the learned Magistrate to dispense with his personal attendance in the aforementioned G.R.Case and to allow him to appear before the Court of the learned S.D.J.M. through a pleader.
2. The case of the petitioner is that on the information of one Laxmidhar Mohapatra, Mangalabag P.S.Case No. 288 of 1996 corresponding to G.R.Case No. 2085 of 1996 of the Court of S.D.J.M. (Sadar), Cuttack was registered against the petitioner and his son-in-law Manoj Kumar Mohapatra for the alleged offences under Sees. 468, 469, 507 read with Sec. 34, IPC. In the said case summons were issued for appearance of the accused persons on 19.9.1997 on which date this petitioner and his son filed a petition under Section 285, Cr.P.C. with a prayer to dispense with their personal appearance and to permit them to appear by their pleaders. It is stated in the petition that the petitioner after his superannuation from the Government service has joined the Bar and has set up his practice as an Advocate at Cuttack having been enrolled as a Member of the Orissa High Court Bar Association, Cuttack. It is submitted that as an Advocate he is to attend the Court regularly to conduct the cases in which he holds briefs and if his personal appearance is insisted in the aforesaid G.R.Case not only the professional career of the petitioner will be ruined but also the litigants who have engaged him shall suffer. As far as the other accused person is concerned, it is stated that he is an employee under the NABARD and is working as an Assistant Manager and his presence in the office is essential on all working days for the smooth running of the office and his appearance in the Court shall cause dislocation in the office administration as well as in rendering service to the people for whose benefit the said organisation exists. The informant filed his objection to the said petition stating that since at the time of taking cognizance order was passed on 20.3.1997 to issue N.B.W. the prayer of the accused persons to dispense with their personal attendance and to allow them to be represented by their counsel cannot be entertained taking resort to Sec. 205, Cr.P.C. It is also alleged by the informant that the present petitioner is involved in another case. Hence, his prayer made Under Section 205, Cr.P.C. be refused. After hearing the parties the learned S.D.J.M.. dismissed the petition of the accused persons on 6.11.1997 by the impugned order which is now under challenge in this Criminal Misc. Case.
3. The learned counsel for the petitioner submits that the grounds assigned for rejecting the petition are not sufficient to sustain the impugned order. The learned Addl. Standing Counsel appearing for the State however contended that the power available Under Section 205, Cr.P.C. to dispense with the personal attendance of an accused being discretionary in nature, the same cannot be interfered with. Thus the question came up for consideration is as to whether Section 205 of the Code authorises a Magistrate to allow representation only at the initial stage of issuing summons or at any later stage. In the above context, it will be profitable to refer to some of the case laws cited at the Bar. In the case of Sudhakar Dash v. Smt. Nirupama Mishra reported in 62 (1986) CUT 445, the petitioner after service of summons and before the date fixed in the summons for appearance filed the petition Under Section 205, Cr.P.C. to dispense with his personal appearance and allow him to appear before the Court through his lawyer. The said petition was rejected without assigning any reason and N.B.W.A. was issued against him. The summons was not in Form No. 1 of the Schedule of the Code and there was also no direction to appeal through pleader. This Court allowing the revision directed the Magistrate to recall the N.B.W.A. issued against the petitioner and allowed the petitioner to be represented by Ms lawyer. In the case of Kaveria/ias Benga alias Sukanti Paikarai and Anr. v. The State reported in 78 (1994) CUT 881, two of the accused persons were shown in the charge-sheet as absconders and N.B.W.A. was issued against them. They moved the learned Magistrate Under Section 205, Cr.P.C. to dispense with their personal appearance and allow their lawyer to represent them. Their prayer was rejected by the learned Magistrate. They challenged the said order by filing petition Under Section 482, Cr.P.C. before this Court and the Court allowed the said petition indicating the circumstances in which the Magistrate can exercise the jurisdiction Under Section 205, Cr.P.C. In the said case it has been observed as follows :
“………. The use of the expression ‘if he sees reasons so to do’ clearly indicates that the power conferred by Section 205(1) is discretionary, and no hard and fast rule can be laid down, as to the manner in which it is to be exercised.
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Court has to weigh inconvenience likely to be caused to accused if he is required to be absent from his vocation, profession, trade, occupation and calling for attendance in Court, against prejudice likely to be caused if he does not appear in Court. Whenever personal attendance is insisted upon, there is undubitably some harassment to the accused, and the Court have to see that this harassment is not out of proportion to the seriousness of the allegation, the sverity of possible punishment on conviction, nature of allegations as they stand out prima facie. Court is expected to exercise its discretion after seeing full picture. Court should normally dispense with the personal appearance when it concerns with a purdanashin woman, high placed public functionary, a busy captain of an industry, and persons rendering public service
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While dealing with an application for dispensing with the personal attendance, the Court should not take too technical or stringent view. The approach should be to see whether personal appearance is absolutely necessary for the purpose of the case……..”
In Radhanath Rath and two others v. M/s. Babulai Agarwalia and Anr. reported in Vol. 60 (19.85) CUT Short Note No. 114 page 54 this Court has also observed that the language of Section 205 of the Code shows that the Magistrate can exercise that discretion only when summons is issued, but in practice usually this power is exercised only when an accused appears pursuant to a summons issued by a Magistrate. From the above decisions it appears that the Magistrate can exercise the jurisdiction not only at the time of issuing summons but also at a subsequent stage. In the present case, it is noticed that the learned S.D.J.M. has rejected the petition mainly on the grounds that the accused persons in the said G.R.Case are neither pardahnashin ladies, high placed functionaries, busy captains of industries nor persons rendering public service. It is noticed that the case of the petitioner is that he is in the roll of High Court Bar Association and is regularly carrying on his practice in the High Court at Cuttack as an advocate. Similarly, the accused Manoj Kumar Mohapatra works as an Assistant Manager in NABARD and is posted at Bhubaneswar. In view of the above positions, the observations of the learned S.D..T.M. that they do not come under the category of persons rendering public service cannot be accepted and it cannot be said that the learned S.D.J.M. has exercised the discretion judiciously. From the aforesaid observation of the learned S.D.J.M., it appears that he has disposed of the petition without properly applying his mind to the same. No doubt, there is another case against the petitioner and an enquiry is going on about the interpolation made to the order dated 20.3.1997 passed by the learned S.D.J.M. in the aforesaid G.R.Case on the allegation that the learned S.D.J.M. passed the order for issuance of N.B.W. against the accused persons which has been scored through with the connivance of the staff. Inquiry is pending to ascertain as to at whose instance the said interpolation is made. However, the fact remains that no warrant was issued pursuant to that order and the learned Magistrate issued summons for appearance of the accused persons on 1 9.9.1 997 on which date the accused persons appearing through their counsel filed a petition Under Section 205, Cr.P.C. Of course, it appears that while issuing summons the learned Magistrate did not exercise his discretion available Under Section 205(1), Cr.P.C. Therefore, the question is whether the accused persons still can appear through their counsel and make a prayer to allow them to be represented by counsel dispensing with their personal appearance. In this context, it may be stated that the language of Section 205, Cr.P.C. shows that the Magistrate can exercise that discretion only when summons is issued. But as has been observed earlier the Magistrate can also exercise the discretion at a later stage. The Magistrate who issues the summons can exercise the power available Under Section 205(1), Cr.P.. not only at the stage of issuing summons but also at the stage subsequent thereto before the trial begins. It is of course only the Magistrate issuing the summons who may exercise the power and not a Magistrate to whom the case is subsequently transferred for inquiry or trial. It is clear that the Magistrate who issues the summons may exercise the power available under Section 205(1), Cr.P.C. not only at the initial stage of issuing summons but also at any stage before the trial begins. Hence, under the circumstances of the case, the contention raised to the contrary cannot be sustained.
4. For the reasons discussed above, the impugned order is liable to be quashed and accordingly it is quashed with the direction to the learned, S.D.J.M. to allow the accused persons of the aforesaid G.R.Case to be represented by their counsel until he requires their personal attendance as envisaged Under Section 205(2), Cr.P.C.