Khushi Lunawat
Section 205 of the Code of Criminal Procedure, 1973, states that when a magistrate issues a summons, he may, if he sees fit, waive the accused’s personal appearance and allow him to appear through his pleader. It also states that he has the authority to enforce such attendance at his discretion.
The legislative goal that led to the creation of this section can be found in Section 273 of the code. The evidence must be taken in the presence of the accused, according to Section 273. It does, however, provide an exception, stating that if personal attendance is not required, the same can be taken in the presence of his pleader.
Sections 205, 299, and 317 of the Criminal Procedure Code provide exceptions to section 273 CrPC, which describe certain circumstances in which the presence of the accused can be excused by the court. A thorough examination of all provisions of the Code of Criminal Procedure, 1973 reveals that, while it is an essential principle of criminal law that an indictable offence must be tried in the presence of the accused, the court has the discretion to exclude the accused from court under certain legitimate situations.
Conditions where section 205 can be used
There is no hard and fast law or formula for determining whether an accuser is entitled to an exemption; rather, it varies from case to case. The power under section 205 crpc is dependent on the magistrate’s discretion, but it cannot be exercised unilaterally without cause.
Bhaskar Industry Ltd. v. The State
The court held that, “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 on 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.”
Is presence of Accused Necessary?
When an application for exemption from appearance under section 205 of the Criminal Procedure Code is heard for the first time, the accused is almost always required to appear, or the magistrate can refuse the application outright.
Exemption from personal appearance under Section 205 CrPC. can only be rendered at the point of the accused’s first appearance, and if the accused appears in person before the court without making any application for dispensing with personal appearance under Section 205 CrPC., such an application will be dismissed at a later stage. But there is another clause, Section 317 CrPC., which allows the court to exclude an individual from prosecution.
While there is another clause, Section 317 CrPC., which gives the court power to exclude an individual from personal presence, the accused’s remedy is under Section 317 CrPC., not Section 205 CrPC., if he does not apply for exemption from appearance at the first hearing.
Arvind Kejriwal v. State of UP
The question of whether, after taking cognizance and issuing a process, such as a summons or a warrant, an exemption application under Section 205 or Section 317 Cr.P.C. can be filed without personal appearance or the posting of bail bonds is thus resolved in the following way: in the case of an accused facing a warrant trial, the provisions of Section 205 or Section 317 Cr.P.C. will not apply.
Difference between section 205 and 317 of CrPC
Although there is another clause of the CrPC, Sec 317, which also deals with the exclusion of the accused from appearing in court. In contrast to Sec. 205, this portion is more expansive.
The following are the key distinctions between secs 205 and 317:
- When the hearings before the Magistrate have started but no charges have been filed, Section 205 of the Code of Criminal Procedure will apply. Even after charges have been filed and the trial has ended, an order issued under Section 205 Cr.P.C. exempting an accused from personal attendance will remain in effect. Section 317 of the Code of Criminal Procedure, on the other hand, will be typically applicable throughout the trial.
- An application for an exemption from appearance under section 205 of the Criminal Procedure Code may be filed at the time of the accused’s first appearance. The Magistrate can, in appropriate cases, allow an accused to make his or her first appearance via counsel. S. 317, on the other hand, allows the Court to proceed with further measures in the case without the accused’s personal attendance at the point of inquiries and trials.
- Another significant distinction between the sections is that Section 205 allows only a Magistrate to exercise power, while Section 317 allows both a Session Judge and a Magistrate to exercise power.
Conclusion
The magistrate’s authority under section 205 of the Criminal Procedure Code is extensive, but it is not unrestricted. The power to dispense with an accused’s presence should be exercised sparingly and with justifications based on evidence on file.
The important thing to remember is that the application under section 205 should be filed in the presence of the accused at the first hearing. If the accuse is present at the first hearing but the appeal is not filed, the recourse available is section 317 crpc if the accuse wishes to be excused from appearing at subsequent hearings.
Furthermore, the court has the authority to revoke this exemption at any time in the interest of justice in order to ensure the presence of the accused.
Also Read- Indrani Mukherjea files an application seeking exemption from convict’s uniform
*Section 205 explained(legalserviceindia.com)
*Difference between section 205 and 317 (mondaq.com)