AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. Sanjeeb K Panigrahi, J.
Since common questions of fact and law are involved in these matters, the same were heard together and are being disposed of by this common judgment. However, this Court finds it appropriate to treat CRLMC No.1997 of 2026 as the leading case for the purpose of adjudication.
The present application has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking quashing of the order dated 03.02.2026 passed by the learned Additional Civil Judge-cum-J.M.F.C., Berhampur in 1.C.C. Case No.465 of 2023, whereby the application filed by the petitioner under Section 205(1) of the Cr.P.C. was rejected.
I. FACTUAL MATRIX OF THE CASE:
The brief facts of the case are as follows:
The petitioner, Sanvie Retail Private Limited, is a private limited company engaged in the retail business. The petitioner was a lawful tenant of the complainants at Berhampur. According to the complainants, the petitioner had not paid the monthly rent from March, 2023 to July, 2023 and had also failed to pay the electricity consumption charges. Subsequently, the petitioner vacated the premises and handed over possession to the complainants after full and final settlement of the outstanding dues amounting to ₹35,24,334/-. Towards the said outstanding dues, the petitioner issued 15 cheques, out of which 11 were duly encashed.
Out of the remaining cheques, cheque No.004421 dated 15.09.2023 for an amount of ₹3,05,987/- issued in favour of Sowbhagyam Kotni was dishonoured for insufficiency of funds. Consequently, Sowbhagyam Kotni instituted 1.C.C. Case No.465 of 2023 under Section 138 read with Section 142 of the Negotiable Instruments Act. Further, cheque No.004423 dated 22.09.2023 for an amount of ₹2,50,000/- issued in favour of Goutam Kotni was dishonoured for insufficiency of funds, pursuant to which Goutam Kotni instituted 1.C.C. Case No.468 of 2023 under the aforesaid provisions.
During the pendency of the aforesaid complaint cases, the petitioner filed applications under Section 205(1) of the Cr.P.C. seeking dispensation of personal appearance on the ground that the company is based at Ballygunge, Kolkata, West Bengal, approximately 900 kilometres away from Berhampur, and that the personal appearance of its director on each date of hearing was therefore not practicable. The said applications were opposed by the respective complainants as having been filed to derail the criminal proceedings.
The learned Additional Civil Judge-cum-J.M.F.C., Berhampur, by orders dated 03.02.2026, rejected the applications filed by the petitioner under Section 205(1) of the Cr.P.C.
Aggrieved thereby, the petitioner has approached this Court seeking quashing of the aforesaid orders.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
The learned counsel for the Petitioner respectfully and earnestly made the following submissions in support of his contentions:
The petitioner submitted that the learned Additional Civil Judge-cum-J.M.F.C., Berhampur, erred in rejecting the applications under Section 205(1) of the Cr.P.C. on the ground that the same were premature and warrants had already been issued against the petitioner. It was submitted that the power under Section 205(1) of the Cr.P.C. is not confined to the stage of issuance of summons and may be exercised by the Magistrate at a subsequent stage of the proceeding, even after issuance of a non-bailable warrant.
It was further submitted that the petitioner is based at Ballygunge, Kolkata, approximately 900 kilometers away from Berhampur, and that the personal appearance of its director on each date of hearing would cause considerable hardship. On this ground, the petitioner sought dispensation of the personal appearance of its director under Section 205(1) of the Cr.P.C.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
Per contra, the learned counsel for the Opposite Parties earnestly made the following submissions:
It was submitted that the applications under Section 205(1) of the Cr.P.C. are not maintainable and have been filed only to delay and derail the proceedings. It was submitted that the petitioner had full knowledge of the proceedings, having been duly intimated through WhatsApp, but deliberately avoided appearing before the learned Additional Civil Judge-cum-J.M.F.C., Berhampur.
It was further submitted that despite issuance of a Bailable Warrant on 11.04.2025, the petitioner failed to appear, pursuant to which a Non-Bailable Warrant was issued on 19.06.2025 and a reminder was thereafter issued for its execution.
It was submitted that the dispensation of personal appearance under Section 205 Cr.P.C. is a discretionary relief and that the petitioner cannot rely merely upon the distance between Kolkata and Berhampur after having failed to comply with the orders of the learned Additional Civil Judge-cum-J.M.F.C., Berhampur. It was further submitted that the personal appearance of the accused is necessary for the effective conduct of the proceedings and identification.
IV. FINDINGS OF THE LEARNED ADDITIONAL CIVIL JUDGE-CUM-J.M.F.C., BERHAMPUR:
The learned Additional Civil Judge-cum-J.M.F.C., Berhampur, upon consideration of the applications filed under Section 205 of the Cr.P.C., observed that after cognizance had been taken of the offence under Section 138 of the Negotiable Instruments Act, the matters were posted for appearance of the accused. However, the accused failed to appear on the dates fixed without obtaining any order of exemption, pursuant to which warrants were issued against him. The learned Court further observed that mere filing of an application under Section 205 of the Cr.P.C. does not automatically dispense with the personal appearance of an accused and that, in the absence of an order granting exemption, the accused remains bound to appear before the Court. Since the accused had not appeared before the Court and the warrants issued against him remained pending for execution, the applications under Section 205 of the Cr.P.C. were held to be premature and not maintainable at that stage. Accordingly, the applications were rejected and the accused was directed to appear and surrender before the Court, with liberty to thereafter seek recall of the warrants and exemption from personal appearance in accordance with law.
V. COURT’S REASONING AND ANALYSIS:
Heard learned counsel for the parties and perused the documents placed before this Court.
The limited issue that arises for consideration in the present case is whether the applications filed by the petitioner under Section 205(1) of the Cr.P.C. could have been rejected by the learned Additional Civil Judge-cum-J.M.F.C., Berhampur, as premature on the ground that the accused had not appeared before the Court and the warrants issued against him were pending execution.
In order to examine the sustainability of the aforesaid finding, it is necessary to consider the scope and ambit of the power conferred upon a Magistrate under Section 205 of the Cr.P.C.
Under Section 205(1) of the Cr.P.C., the Magistrate is empowered to dispense with the personal attendance of the accused and permit him to appear through his pleader. Such power is discretionary in nature and has to be exercised having regard to the facts and circumstances of each case. The provision is reproduced hereunder for ready reference:
“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.”
In the present case, the failure of the accused to appear pursuant to the summons and the consequent issuance of warrants are relevant circumstances which the learned Additional Civil Judge-cum-J.M.F.C., Berhampur, was entitled to take into consideration while deciding the applications under Section 205(1) of the Cr.P.C. Such circumstances do not constitute an absolute bar to consideration of an application seeking dispensation of personal appearance.
The Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd.1 observed that in a summons case, such as one involving an offence under Section 138 of the Negotiable Instruments Act, where the Court is satisfied that personal attendance may result in enormous hardship and cost to an accused, the Court may dispense with his personal attendance either throughout or at any particular stage of the proceedings, subject to appropriate conditions. The Supreme Court further observed that such relief may be granted upon an undertaking that the accused would not dispute his identity, that a counsel on his behalf would remain present before the Court and that he would have no objection to evidence being recorded in his absence.
In Sharif Ahmed v. State of U.P.2, the Supreme Court reiterated that the power to grant exemption from personal appearance under the Cr.P.C. ought not to be construed in a restrictive manner and that the exercise of such power is not necessarily dependent upon the accused having first obtained bail.
The aforesaid principles do not confer an absolute right upon an accused to seek exemption from personal appearance. The discretion continues to vest with the learned Magistrate, who is required to consider the facts and circumstances of each case and determine whether the personal attendance of the accused is necessary. The conduct of the accused during the proceedings is also a relevant consideration in the exercise of such discretion.
In the present case, the accused admittedly failed to appear before the learned Additional Civil Judge-cum-J.M.F.C., Berhampur, pursuant to the summons issued against him, following which warrants were issued against him. The conduct of the accused in the proceedings is a relevant factor to be taken into consideration while deciding whether his personal appearance ought to be dispensed with under Section 205 of the Cr.P.C.
In the impugned orders, the learned Additional Civil Judge-cum-J.M.F.C., Berhampur, has taken into consideration the failure of the accused to appear before the Court and the pendency of the warrants issued against him. Further, the prayer for exemption from personal appearance has not been finally declined, as liberty has been granted to the accused to seek recall of the warrants and exemption from personal appearance upon his appearance before the Court. Such application, if filed, has been directed to be considered in accordance with law.
In view of the aforesaid circumstances, this Court does not find sufficient ground to interfere with the impugned orders dated 03.02.2026. Any application that may be filed by the accused seeking exemption from personal appearance shall be considered by the learned Additional Civil Judge-cum-J.M.F.C., Berhampur, on its own merits and in accordance with law, keeping in view the principles governing the exercise of power under Section 205 of the Cr.P.C.
VI. CONCLUSION:
Accordingly, the CRLMCs stand dismissed. The accused shall be at liberty to seek recall of the warrants and exemption from personal appearance before the learned Additional Civil Judge-cum-J.M.F.C., Berhampur, in accordance with law.
Interim order, if any, passed earlier stands vacated.