Updated: Jul 15, 2022
The majority of individuals who are facing trial might not be aware of the fact that the attendance of an accused during trial can be exempted. This blog is being written to educate our readers of their rights and of the relevant provisions pertaining to the exemption of the accused during trial.
Section 205 Cr.P.C:
That Section 205 of the Code of Criminal Procedure, 1973 contemplates that whenever a magistrate issue summons, he may, if he observers reasons to do so, dispense with the personal attendance of the accused and permit him to appear by his pleader. It also contemplates that at his discretion, he may enforce such attendance. The relevant section is being reproduced as under:-
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.
That it would be relevant to submit that there is no straight-jacket formula or thumb rule to identify the circumstances to give exemption to accuse; rather, it depends on case to case. The power under section 205 Cr. P.C is based on the discretion of the Magistrate, but this discretion can't be used arbitrarily without reasons. Whether or not an accused deserves to be exempted from personal attendance has to be of the satisfaction of the Magistrate, who is the master of the court in so far as the progress of trial is concerned.
Judgments of the Hon’ble Supreme Court on the:
That the Hon’ble Supreme Court of India in Sri Rameshwar Yadav v. State of Bihar, 2018(2) R.C.R.(Criminal) had just recently quashed Magistrate order which had refused to dispense with the personal appearance of accused whose residence was 1750 Km away from the trial court. The application was rejected by the Magistrate on the ground that accused persons are hale and hearty, not suffering from any disease which may be an impediment in appearance. The Hon’ble Apex court held that the application was not filed on the ground of physical fitness; rather, it was filed on the ground that the accused resided 1750 km away from the place of trial. The Hon’ble Supreme Court held that the accused was entitled to exemption.
That in Bhaskar industry Ltd. v. State, 2001(4) R.C.R.(Criminal), the relevant para is being reproduced as under:-
“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 authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.”
Section 317 Cr.P.C
That there is another provision that is Section 317 Cr. P.C, which gives discretion to the Court to exempt a person from personal appearance. Though Section 317 is another section in Cr. P.C, which also speaks about exemption from the appearance of the accused in the trial. This section is more wide and broad in comparison to sec 205. Section 205 of the Code of Criminal Procedure would be applicable when the proceedings have begun before the Magistrate and charges are yet to be framed. An order issued under Section 205 Cr.P.C., exempting the personal attendance of an accused, would continue to be operational even after charges have been framed and till the conclusion of the trial. But on the other hand, section 317 of Code of Criminal Procedure would generally be applicable during the trial stage, i.e., after the charges have been framed. Application of section 205 Cr.P.C can be filed at the time of first appearance of the accused, claiming the exemption from appearance. In appropriate cases, the Magistrate can allow an accused to even make the first appearance through counsel. On the other hand, section 317 empowers the Court to dispense with the personal attendance of the accused of proceeding with further steps in the case at the stage of inquiries and trials. That another major difference between the sections is that power under Section 205 could be exercised only by a Magistrate, whereas power under Section 317 could be used both by a Session Judge or a Magistrate.