By Tanushree Dubey
Published on: December 17, 2023 at 16:43 IST
One of the fundamental principles of criminal law is the right of the accused to be present during the trial. However, the Code of Criminal Procedure, 1973, recognizes that there are circumstances where the personal appearance of the accused can be dispensed with, providing a legal framework for exemptions. This article explores the grounds and conditions under which an accused may seek exemption from personal appearance in court, delving into the relevant sections of the CrPC and examining case law jurisprudence.
Provision under CrPC
In the Code of Criminal Procedure (CrPC), two important provisions, Section 205 and Section 317, establish the legal basis for granting exemptions from personal appearance to accused individuals in criminal proceedings. These provisions recognize the real-life challenges that accused individuals may encounter, striving to find a balance between the demands of justice and the personal situations of those involved.
The discretionary authority given to the courts through these sections allows for a thoughtful and nuanced approach to handling legal proceedings, ensuring fairness while taking into account the unique needs and circumstances of the accused.
Section 205 of the Code of Criminal Procedure, 1973, grants magistrates’ discretionary authority to dispense with the personal attendance of an accused, introducing flexibility into the legal process. This section serves as a notable exception to the broader rule established in Section 273 of the CrPC, which generally requires the accused’s presence during the presentation of evidence.
Subsection (1) of Section 205 empowers magistrates to exercise discretion when issuing a summons. If the magistrate sees a valid reason, they may dispense with the personal attendance of the accused and allow representation through a pleader. This provision acknowledges the need for early intervention in cases where personal appearance is challenging.
Subsection (2) – Discretion to Enforce Attendance: The discretionary power granted by Section 205 extends throughout the proceedings. The magistrate inquiring into or trying the case has the authority, at any stage, to direct the personal attendance of the accused. This discretionary power also includes the ability to enforce such attendance if necessary, utilizing methods established in earlier sections of the CrPC.
Scope and Object:
Section 205 is designed to address challenges faced by the accused, allowing exemption from personal appearance due to personal difficulties. It becomes particularly relevant when the accused encounters issues such as distance-related hindrances in attending court proceedings. The primary object is to provide an alternative solution for the accused, permitting someone else, usually a pleader, to appear on their behalf.
Mandatory Presence at Application:
According to Section 205, it is mandatory for the accused to be present at the first hearing when seeking an exemption from appearance. Failure to comply may result in the rejection of the application. This application can be filed at the accused’s first appearance, even without explicit requests from the accused. The rationale behind this requirement is to ensure that the accused makes their intention clear at the earliest stage.
Conditions Imposed for Grant of Exemption:
Various conditions may be imposed for granting exemption under Section 205. These conditions include.
- Identity Acknowledgment:
The pleader representing the accused must not dispute the identity of the accused in any manner. This serves to maintain clarity and consistency in recognizing the accused party throughout the legal proceedings.
- Presence of Legal Counsel:
Legal counsel must be consistently present on all specified posting dates, ensuring that the accused’s interests are adequately represented in their absence. This condition reinforces the importance of legal oversight in the proceedings.
- No Objections to Evidence:
The accused should refrain from raising objections to the court’s process of taking evidence even in their absence. This condition fosters a cooperative approach, preventing unnecessary interruptions in the trial.
- Commitment to Availability:
A commitment from the accused to be available promptly whenever the court deems their presence necessary. This condition upholds the flexibility of the court to call upon the accused when circumstances warrant their attendance.
These conditions collectively serve as a strategic framework, aiming to uphold the accused’s right to exemption while safeguarding the court’s pursuit of a fair and just trial.
Factors Considered by the Court:
The court considers multiple elements when deciding on an exemption application under Section 205. These factors include the nature of the allegations, the behaviour of the accused, challenges related to distance, difficulties in personal appearance, and potential prejudice to the complainant.
- Nature of Allegations:
The gravity and nature of the allegations against the accused play a pivotal role in the court’s decision. Serious offences may lead to a more cautious approach regarding exemption.
- Behaviour of the Accused:
The conduct and behaviour of the accused during the proceedings are scrutinized. Courts may consider past behaviour to assess the likelihood of cooperation and respect for legal processes.
- Distance Challenges:
Challenges related to the geographical distance between the accused’s location and the court are taken into account. This factor recognizes the practical difficulties an accused might face in attending court personally.
- Difficulties in Personal Appearance:
The court evaluates any specific challenges or difficulties the accused may encounter in making a personal appearance. This could include health issues, personal hardships, or other impediments.
- Potential Prejudice to the Complainant:
The court weighs the potential prejudice to the complainant if the accused is exempted from personal appearance. It seeks to ensure that the complainant’s interests are considered in the decision-making process.
- Discretionary Power of the Court:
The court’s overarching discretion is a crucial factor. It allows the court to adapt its decision based on the unique circumstances of each case, ensuring a fair balance between the interests of justice and the practical challenges faced by the accused.
These factors collectively contribute to the court’s comprehensive assessment when considering an exemption application under Section 205, reflecting the nuanced nature of decision-making in criminal proceedings.
Liberal vs. Strict Approach
In applying Section 205, courts typically adopt a liberal approach, especially in cases involving trivial or technical matters, as well as individuals like women, the elderly, sick individuals, factory workers, and daily wage earners. However, a strict approach may be taken in serious offences, especially those involving moral turpitude. The court’s approach is guided by the overarching principle of ensuring justice while considering the accused’s situation.
Precautions and Conditions for Exemption
When granting exemption under Section 205, the magistrate may ask for an undertaking from the accused, including a narration of facts justifying non-attendance, an assurance of no prejudice, and a commitment to appearing when necessary. Conditions such as depositing a certain amount or submitting a bond with sureties may also be imposed. These precautions aim to ensure that the exemption is granted responsibly, and the accused remains accountable to the court.
Section 205 offers a balanced approach, recognizing the challenges faced by the accused and aiming for a fair balance between the interests of justice and the practical constraints of the accused. The court’s discretionary powers play a crucial role in determining when and how exemptions are granted.
Section 317 of the CrPC empowers the court to exempt the accused from personal attendance during a trial or inquiry under specific circumstances. This provision provides flexibility to the court in managing proceedings while considering the practical challenges faced by the accused.
Section 317 Subsection (1): Allows the court to proceed without the accused’s personal attendance if satisfied that it is unnecessary or the accused disrupts proceedings, provided the accused is represented by a pleader. The court must record reasons in writing. This subsection underscores the court’s authority to ensure a fair trial while accommodating the accused’s situation.
Subsection (2): If the accused is not represented or attendance is deemed necessary, the court may adjourn or conduct a separate trial. However, the judge or magistrate shall positively record the reasons in writing. This subsection provides options for the court to manage proceedings effectively.
Scope and Applicability
Section 317 applies after the commencement of a trial, enabling the court to dispense with the accused’s presence in the interest of justice or to prevent disruption. Factors considered include the nature of the allegations, the conduct of the accused, and distance challenges. The court’s discretion is critical in determining whether the exemption is appropriate in each case.
Dispensing Attendance under Section 317
The court has the authority to continue the trial without the accused’s presence but may order attendance if deemed necessary later. Section 317 does not apply to trials under the Prevention of Corruption Act, 1988, except in certain circumstances. This provision recognizes the unique challenges posed by corruption trials.
Difference between section 205 and section317
Section 317 is applicable during the trial or inquiry stage, whereas Section 205 is invoked when summons are issued, and charges are yet to be framed. Both sections empower the court to dispense with attendance even without a specific request from the accused. Section 317 provides the court with tools to manage proceedings effectively after the trial has commenced.
Application for Exemption
The accused can file an application under Section 317 through a pleader or directly, justifying the need for exemption. The court’s discretion is crucial, and exemptions are not automatic rights for the accused. The accused’s application is a crucial aspect, and the court’s assessment involves considering the unique circumstances of each case.
Case laws
- Puneet Dalmia v. CBI (2020)
Puneet Dalmia, the accused, was facing charges that necessitated weekly travel from Delhi to Hyderabad for court hearings. This frequent travel imposed hardships, affecting their ability to meet local business commitments.
The Supreme Court, recognizing the practical challenges faced by the accused due to weekly travel, exempted them from personal appearance. The Court considered the balance between the interests of justice and the accused’s practical difficulties. This judgment reinforced the principle that the court’s discretion can be invoked to address genuine and substantial difficulties faced by the accused during legal proceedings.
- Lily Begum v. Joy Chandra Nagbanshi (1994)
Lily Begum, the accused, faced serious charges, including rape, cheating, and criminal intimidation under various sections of the Indian Penal Code.
The Supreme Court exercised caution in cases with severe charges, opining that personal attendance should not be dispensed with when serious allegations are made against an accused. The Court emphasized the importance of maintaining public confidence in the administration of justice. This judgment clarified that while the court has discretionary powers under Section 317, it should be exercised judiciously, especially in cases involving grave offences. It highlighted the need to strike a balance between the accused’s rights and the societal interest in ensuring a fair and just trial.
- Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd (2001)
The case involved a summons case, and the accused sought an exemption from personal appearance. The judgment related to Section 205 of the Code of Criminal Procedure, which provides discretion to the Magistrate to exempt a person from personal appearance, even at the stage of issuing summons.
The Supreme Court held that it is within the magistrate’s judicial discretion to dispense with the personal appearance of an accused in a summons case. The decision underscored the magistrate’s authority to consider the accused’s suffering and the nominal comparative advantage. This judgment established a precedent for the liberal exercise of discretion under Section 205, acknowledging the practical difficulties faced by the accused in summons cases. It emphasized that the court’s primary concern should be to ensure a fair trial without causing unnecessary hardship to the accused.
- Anita Rai v. The State of Madhya Pradesh (2022)
The case involved the denial of an exemption from personal appearance to the accused, residing thousands of miles away, in a matter filed under Section 498A of the Indian Penal Code, dealing with cruelty towards a married woman.
In 2022, the Supreme Court quashed the magistrate’s order, emphasizing the practical difficulties faced by the accused due to geographical distance. The ruling underscored the discretionary power of the Magistrate under Section 205 and the need for a liberal approach to ensure a fair trial without unduly burdening the accused. The judgment established that substantial geographical distance could be a valid ground for dispensing with the accused’s personal appearance, setting a precedent for considering practical challenges in similar cases.
- Cardinal Mar George Alencherry v. Joshi Varghese & Ors. (2022)
In the case of Cardinal Mar George Alencherry v. Joshi Varghese & Ors. (2022), the accused, facing charges under Sections 406, 423, 120B, read with Section 34 of the Indian Penal Code, sought exemption from personal appearance. The Kerala High Court, in its 2022 judgment, applied stringent standards when an accused seeks exemption from the first appearance. The court dismissed the petition of Cardinal Mar George Alencherry, emphasizing that the grant of exemption from personal appearance is at the discretion of the court. This decision highlighted the need for a more rigorous evaluation when considering exemption from the initial appearance in court.
- S. Nalini Jayanthi v. M. Ramasubba Reddy (2022)
In the legal proceedings against S. Nalini, where she was charged under Section 138 of the Negotiable Instruments Act, of 1881, she sought the transfer of the case for her convenience, a plea that was ultimately dismissed by the Apex Court. However, recognizing the unique circumstances, the court took into account her status as an elderly woman and acknowledged her right to seek exemption from personal appearance. This case serves as a poignant illustration of the court’s sensitivity to individual situations, especially when considering the age and specific needs of the accused in decisions related to personal appearances.
- Ajay Kumar Bisnoi v. M/S. Kei Industries Limited (2015)
In the case of Ajay Kumar Bisnoi, the Madras High Court addressed the crucial aspect of maintaining a delicate balance when a Magistrate contemplates exempting the accused from personal presence. The court emphasized that such an order should be crafted with care, ensuring it neither unfairly prejudices the complainant nor inflicts unnecessary inconvenience and hardship on the accused. This decision underscores the judicial wisdom in advocating for a measured and fair approach, seeking equilibrium in safeguarding the interests of both parties involved in the legal proceedings.
Conclusion
The Code of Criminal Procedure grants discretionary powers to the courts to dispense with the personal appearance of the accused based on the facts and circumstances of each case. The absence of an exhaustive list of offences for which exemptions should be granted underscores the importance of judicial discretion. The overarching principle is that the process of the courts should not be a tool for harassment, and the insistence on personal appearance should align with the administration of justice.
In cases where the accused would suffer undue hardships or where the advantages of their physical presence are nominal, exemptions should be granted judiciously. Balancing the rights of the accused with the interests of justice remains a key challenge for the judiciary in ensuring a fair and efficient legal system.
