Trial Courts Must Be Circumspect Before 'Pestering' On Personal Attendance Of Doctors, Public Servants While Issuing Summons: Orissa High Court

The Orissa High Court has held that trial Courts must be careful and should balance the mandate of law (requiring personal attendance of an accused) and requirements of the general public while pestering on the personal attendance of a public servant, particularly a doctor, whose presence is very much necessary in the hospital.

While dispensing with the personal attendance of lady Gynaecologist before the trial Court, the Single Bench of Justice Sangam Kumar Sahoo held,

“The Presiding Officer of the Court has a bounden duty to balance the mandate of the law and requirements of general public and then decide the fate of a petition filed under section 205 of the Cr.P.C. by an accused who also happens to be a public servant, more particularly, the Government servants who are enjoined with a duty to safeguard the lives and health of people.”

The Court was hearing an appeal under Section 14-A(2) of the SC & ST (Prevention of Atrocities) Act filed by a lady Gynaecologist, who is accused of commission of offences under Sections 341 and 323 of the IPC read with section 3(2)(va) of the S.C. & S.T. (PoA) Act.

After filing of charge-sheet, the trial Court summoned the appellant to remain personally present before it. However, she filed a petition under Section 205 of the CrPC requesting for her personal appearance to be dispensed with on the ground that she being a doctor, attached to a District Headquarters Hospital, needed to be present in the hospital for the public.

However, the trial Court did not entertain her application observing that her attendance in the hospital is not required round the clock and she can very well attend the Court proceedings.

Court's Observations

The Court, at the outset, noted that Section 205 of the CrPC does not specify in which cases the Magistrate can pass an order dispensing with the personal attendance of an accused and thereby, confers complete discretion upon the Magistrate to decide as to under which circumstances, the personal attendance of accused can be dispensed with.

The Court, however, held that the terms “if he sees reasons so to do” used under Section 205(1) of the CrPC does not mean the unrestrained exercise of choice, rather it means the exercise of sound discretion, i.e. with knowledge and prudence coupled with a reasoned order.

The Court further referred to the observation made by the Apex Court in Reliance Airport Developers (P) Ltd. v. Airports Authority of India, wherein it was held that 'discretion' means judicial discretion and not whim, caprice or fancy of a judge.

“The power under section 205 of the Cr.P.C. has to be exercised considering the circumstances of the case, conditions of the accused and the necessity for his personal attendance etc. The Magistrate cannot be arbitrary or capricious while using his judicial discretion and must adjudge the circumstances with his judicial conscience, weighing all the relevant factors, so as to come to a definite conclusion if personal attendance of an accused is indispensable before the Court. The Court ought to be even more careful and circumspect when attendance of a public servant is sought for,” Justice Sahoo observed.

Procedural Leniency For Women Accused

Again, the Court placed reliance upon the judgment of the Supreme Court in R. Annapurna v. Ramadugu Anantha Krishna Sastry where a lenient approach was adopted by the Court while dealing with women accused persons and their personal presence was dispensed with. Thus, having regard for the aforesaid precedent, the Single Judge observed,

“Though it is no doubt true that every accused, irrespective of gender, race, caste, creed and other considerations, is equally accountable in the eye of law, but some procedural leniency can be afforded to people who are considered to be vulnerable.”

In the instance case, the Court observed, the investigating officer did not think it proper to arrest the appellant for which a notice under Section 41-A of the CrPC was served on her and she duly abided by the terms and conditions of the notice. It also held that nothing has been pointed out as to what useful purpose would be served by pestering on her personal attendance before the trial Court.

Accordingly, the Court was of the view that as the appellant is a lady doctor, specialising in Gynaecology, her presence is very much essential in the hospital. Thus, it set aside the impugned order and dispensed her personal attendance before the trial Court. However, it was made clear that she would attend the proceedings of the trial Court as and when her personal attendance would be required.

Case Title: Dr. Hemangini Meher v. Sangita Naik & Anr.

Case No: CRLA No. 1065 of 2023

Date of Order: December 05, 2023

Counsel for the Appellant: Mr. Devashis Panda, Advocate

Counsel for the Respondents: Mr. Sonak Mishra, Additional Standing Counsel

Citation: 2023 LiveLaw (Ori) 116

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