JUDGMENT
M.M. Das, J.
1. This case arises out of a private complaint. The opp. party herein filed I.C.C. No. 972 of 2006 before the learned S.D.J.M., Bhubaneswar alleging commission of offence under Section 138 of the Negotiable Instrument Act (for short, ‘the N.I. Act’) to have been committed by the petitioner. After taking cognizance of the offence, summon was issued to the petitioner to appear in the said case. On the date fixed for the appearance, an application under Section 205 ,f of the Code of Criminal Procedure (hereinafter referred to as ‘the’ Code’) for dispensing with the personal appearance of the petitioner and for allowing him to be represented through his advocate, was filed on behalf of the petitioner by the counsel appearing on his behalf. The grounds taken in the said application were that, the petitioner is a busy businessman and mostly remains out of Bhubaneswar for which, it is not practicable on his part to appear in person in Court and that the offence alleged being under Section 138 of the N.I. Act which is bailable in nature and mostly depends on documentary evidence, for which, the personal presence of the accused is not very much necessary. Though, no written objection to the said petition was filed by the opp. party, but, after hearing on the said application, the learned S.D J.M., Bhubaneswar, on 28.10.2006 rejected the prayer of the petitioner with the following orders:
The case record is put up for accordance of necessary orders with respect to petition under Section 205 Cr.P.C. filed by the learned Counsel for the accused with a prayer to dispense with his personal attendance. Heard. Perused the case record. The amount involved in the case is heavy. Keeping in mind the principles settled in the case of M/s. Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and Ors. reported in (2001) 21 OCT (SC) 452, I am not inclined to allow the petition under Section 205 Cr.P.C. Accordingly, the petition is rejected. Put up on 28.11.06 for appearance of the accused.
The above order has been impugned in the present application filed under Section 482 of the Code.
2. After hearing learned Counsel for the parties, in extenso, and perusal of the impugned order, I find that the learned S.D.J.M. taking the ‘amount’ involved in the case into account and relying upon the principles laid down in the decision of the Supreme Court in the case of Bhaskar 2001 (II) OLR (SO 61st Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors. (2001) 21 OCR (SC) 452 has rejected the said application.
3. A case under Section 138 of the N.I. Act is a summons case. Section 317 of the Code provides s follows:
317. Provision for inquiries and trial being held in the absence of accused in certain cases. – (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.
4. Section 205 of the Code, which comes under Chapter-XVI-Commencement of Proceedings before the Magistrate provides as follows:
205. 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 pleader.
(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.
5. Considering the provisions of Section 317 of the Code along with Section 273 of the Code, the Supreme Court in the case of M/s. Bhaskar Industries Ltd. (supra) posed a question that if a Court feels that insisting on the personal attendance of an accused in a particular case would be too harsh on account of a variety of reasons, can’t the Court afford relief to such an accused in the matter of facing the prosecution proceeding? This question was answered by the Supreme Court by holding that normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused, such evidence can be taken, but then, his counsel must be present in the Court, provided the accused has been granted exemption from attending the Court. The Supreme Court held as follows:
14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken, but then his counsel must be present in the Court, provided he has been granted exemption from attending the Court. The concern of the criminal Court should primarily be the administration of criminal justice. For that purpose the proceedings of the Court in the case should register progress. Presence of the accused in the Court is not for making his attendance just for the sake of seeing him in the Court. It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the Court can certainly take into account the magnitude of the suffering which a particular accused person may have to bear with in order to make himself present in the Court in that particular case.
15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal Courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardship, without causing prejudice to the prosecution proceedings.
16. xxx xxx xxx
17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf the accused in a case where the personal ^appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the Court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with further the steps in the case.
However, one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.
18. xxx xxx xxx
19. The position, therefore, bogs down to this : it is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorized counsel praying for affording the benefit of personal presence being dispensed with, the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.
20. In the result, we allow this appeal and set aside the order passed by the Sessions Judge on 30.6.2000 (in Criminal Revision Petition 197/2000). However, this course is adopted without prejudice to the rights of the second accused to move a fresh application seeking relief under Section 317 of the Code. II any such application is filed, the magistrate shall pass orders thereon before proceeding further in the light of the observations made in this judgment.
In the present case, however, I find that the learned S.D.J.M., has, without appreciating the aforesaid decision of the Supreme Court in its proper perspective, rejected the application under Section 205 of the Code, mechanically.
6. No doubt, exemption of the accused from personally attending the Court is an exception and not the rule. From the impugned order, however, it transpires that the learned S.D.J.M. except mechanically stating that keeping in mind the principles settled in the case of M/s. Bhaskar Industries Ltd. {supra), he is not inclined to allow the petition under Section 205 of the Code. It is needless to state that a Court of law while passing any order is required to assign reasons for the conclusions arrived at.
Reason is the heartbeat of every conclusion, and without the same, it become lifeless” as was held by the Supreme Court in the case of Rajkishore Jha v. State of Bihar . The question of assigning reasons also came up before the Supreme Court in the case of State of Orissa v. Dhani Ram Luhar where the Supreme Court quoting Lord Denning in the case of M.R. in Breen v. Amalgamated Engg. Union (1971) 1 All ER 1148, where it was stated that the giving of reasons is one of the fundamentals of good administration and in Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120(NIRC), where it was observed that failure of giving reasons amounts to denial of justice and reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at, held as follows:
…Reasons substituted subjectively by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system : reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The “inscrutable face of the sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance.
7. As already observed above, the impugned order does not disclose any reason whatsoever, on account of which the application filed by the petitioner under Section 205 of the Code was rejected.
8. In my considered view, the learned S.D.J.M., Bhubaneswar has failed to apply his judicial mind while disposing of the application under Section 205 of the Code filed by the petitioner, and, as such, the impugned order dated 28.10.2006 passed in I.C.C. No. 999 of 2006 by the learned S.D.J.M., Bhubaneswar cannot be sustained, and, is accordingly set aside. The learned S.D.J.M. is directed to reconsider the application filed by the petitioner under Section 205 of the Code, afresh, keeping in view the observations made above as well as the law as laid down in the case of M/s. Bhaskar Industries Ltd. (supra) by assigning reasons for the conclusion to be arrived at by him.
The CRLMC is accordingly allowed.
