One of the essential postulates of Criminal Law is that the
trial should take place in the presence of the accused person. This emanates
from the rules of Natural Justice, which mandates that the other side should be
given sufficient opportunity to rebut hostile evidence against him/her.
also embedded in Section 273 of the Code of Criminal Procedure, 1973, which says
that evidence against accused should be taken in the presence of accused.
However, there are certain provisions in the Code of Criminal Procedure which
entitle an accused to remain absconding from personal appearance, subject to the
discretion of the Court.
The present article will explore the powers of the Court in dispensing with
personal appearance, & the conditions upon accused it can impose upon.
Provisions Of Law Under Which Accused Can Seek Personal Exemption From
Court is entitled to dispose of the personal appearance of accused before the
Court under Section 205 or Section 317 of the Code of Criminal Procedure. A bare
perusal of these provisions makes it clear that the Court is empowered to
dispose of the personal appearance of accused at any stage of the Trial. Section
205 empowers the Court to grant exemption from personal appearance, at the
incipient stage of the trial, while Section 317 of the Code covers the stage
after commencement of trial. As per Section 205(1) of the Code the Magistrate
has the power to dispense with personal appearance of accused, even at stage of
issuance of summons.
It is important to note that the power under Section 205 of the Code is the
exclusive power of the Magistrate, on the other hand the power under Section 317
is available to the Session's Judge as well.
Evolution Through Case Law Jurisprudence
Power of the Court to exempt an
accused from personal appearance in a criminal trial can be exercised,
considering the circumstances of the particular case, nature of allegations
involved & the necessity of personal appearance. Usually, personal appearance is
the norm in offenses which involve moral turpitude. When the Courts are dealing
with an application for personal exemption, then they must take into appraisal
whether the insistence on personal appearance would cause difficulty and
inconvenience, as compared to the insistence upon personal appearance by the
The Liberal Approach:
- Provisions Of Law Under Which Accused Can Rely Upon To Seek
Accused can get relief from personal attendance under Section 205 or Section 317
of Code of Criminal Procedure. A bare perusal of these Sections makes it clear
that the Court is authorized to grant exemption at any stage of the proceedings.
Section 205 gives discretion to the Court to grant relief to accused, right from
the commencement of proceedings. On the other hand, Section 317 of the Code
deals with the stage after commencement of trial. The accused need not appear
personally before the Magistrate, to seek exemption.
Section 205(1) states, that
at the time of issuing Summons, the Magistrate is empowered to dispense with
personal appearance at the initial stages, and allow him to appear through
Pleader. Magistrate is empowered to do so even without prayer for the same.
- Case Law Development
The power to grant exemption from personal
attendance is exercised, keeping in mind the circumstances of the case,
condition of the accused, & the necessity of personal appearance. Granting of
exemption is dependant on the facts & circumstances of a particular case.
Usually, accused in crimes of moral turpitude are not granted exemption, and are
have to be present on all dates of hearing. If person has been accused of some
minor crime, which is more in the nature of a misdemeanour, exemption is usually
If we do an analysis of the Case Law's we see circumstances where the Court has
not allowed exemptions and, in some situations, where Court has granted
Courts usually adopt a liberal & generous approach in
granting exemption in these cases. The intent behind granting these exemptions
is that proceedings against the accused should be decided expeditiously, &
adjournment should not be granted because of absence of accused.
Courts have repeatedly emphasized that accused should only be compelled to
appear when their presence is necessary, for example a Witness needing to
identify them. It was held in the case of Halen Rubber Industries vs State of
Kerela that exemption should be liberally to old persons, sick and infirm
persons, people who live far from the Court and also busy industrialists.
The Supreme Court in Puneet Damia vs CBI
allowed the exemption application of an
industrialist who had travel weekly, from Delhi to Hyderabad to attend the
The Supreme Court in Abdul Gafoor vs Kerela granted exemption to a person who
made was an accused in a case, due to the position which he was occupying at
Exception was also granted to an engineer who was working in the United States
and had been accused of an offense in India.
The Court in the case of Lily Begum v. Joy Chandra Nagbansh
to exempt a person, who was accused of offenses like rape and murder. The Court
will also refuse to grant exemption if the exemption will cause a delay in the