2 July 2021
An essential principle of criminal law is that the trial of an offence should take place in the presence of the accused. This principle has been embodied in Section 273 of the Code of Criminal Procedure, 1973 (“CrPC”), which provides, as a general rule, that all evidence taken in the course of trial shall be taken in presence of the accused. While it cannot be denied that such a rule is mainly for the protection of the interest of the accused, CrPC has provisions allowing courts the discretion, in certain circumstances, to exempt an accused from personal appearance. However, exemption from personal appearance is not available to an accused as a matter of right; and is subject to the discretion of the Court.
The present article discusses the power of the Court to dispense with the presence of the accused, the factors to consider, and the conditions it imposes for the same.
I. Provisions under which accused can seek exemption from personal appearance
The personal attendance of the accused can be dispensed with either under Section 205 or Section 317 of CrPC. A joint reading of the Sections makes it clear that the court is empowered to dispense with the personal attendance of the accused at all stages. While Section 205 gives discretion to the court to exempt a person from personal appearance right from the stage of commencement of the proceedings; Section 317 covers the stage after commencement of the inquiry or trial[1]. Thus effectively, an accused is entitled to seek exemption from personal appearance right from the initial stages including the first appearance, after satisfying the Court with proper reasons. Further, the accused need not appear personally to seek exemption. Section 205(1) states that even at the stage of issuing summons, the Magistrate may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear through his pleader. This discretion may be exercised by the Magistrate even in the absence of any prayer by the accused for exemption from personal attendance.[2]
It may be noted that the power under Section 205 CrPC is only available to the Magistrate, however, the power under Section 317 of CrPC can be exercised by both the Magistrate as well as the Sessions Judge.
II. Understanding the case law jurisprudence
The power to exempt a person from personal appearance is exercised considering the circumstances of the case, condition of the accused, and the necessity of personal appearance. The grant of exemption depends solely on the facts and circumstances of each case. Ordinarily, personal appearance is the rule in criminal cases of a serious nature, involving moral turpitude. On the other hand, if the offence is punishable with fine only, and involves no moral turpitude, exemption from personal appearance is the rule.[3] While dealing with an application for grant of personal exemption, the courts must generally allow the exemption where insistence on personal attendance of the accused in the case would cause serious difficulty and inconvenience and the comparative advantage would not overweigh the non-presence of the accused.[4]
An analysis of the various case laws on the subject matter highlights instances and situations where the courts have generally taken a strict view and denied exemption and those where the courts have been liberal in granting exemption from personal appearance. The same has been discussed below.
Liberal/ Generous approach to exemption
Courts generally adopt a generous and liberal approach in exempting the accused from personal appearance. The purpose behind granting exemption to an accused from personal appearance is that the proceedings may be taken in the case against the accused expeditiously and the hearing be not adjourned only for the absence of the accused.[5]
It has been time and again held that the Courts should insist upon the appearance of the accused only when it is in the interest of the accused to appear or when the Court feels that his/ her presence is necessary for effective disposal of the case. For example, the presence of the accused may be necessary for identification by witness.[6] It has also been held that courts should exercise discretion liberally in all trivial and technical cases where the accused are women, old and sick persons, workers in factories, daily wage earners, busy business people and industrialists.[7]
Exemption from personal appearance has been given in cases where the accused generally resides and works in a different district or state.[8] The Supreme Court in Puneet Dalmia v CBI,[9] exempted the accused from personal appearance taking into account their weekly travel from Delhi to Hyderabad to attend the trial court hearing, which was causing hardships in meeting their local business commitments..
The courts have been liberal in granting mandatory attendance exemption to such person/party who became accused in a case by virtue of their office.[10] Further, exemption has also been granted to accused working abroad on account of their employment.[11]
Strict Approach [Cases where exemption is ‘generally’ not allowed]
The courts exercise great caution while entertaining an application for grant of exemption from personal appearance in cases where serious allegations are made against the accused. For instance, in Lily Begum v. Joy Chandra Nagbanshi[12] where the accused was charged with offences punishable under Sections 376 (Rape), 417 (Cheating) and 506 (Criminal Intimidation) of the Indian Penal Code, 1860, the Apex Court opined that when serious allegations are made against an accused, personal attendance should not be dispensed with as it would lead people into losing their confidence in the administration of justice. The courts have also refused to grant an exemption where it would lead to delay in the proceedings[13] or hinder the purpose of identification. However, the assessment is made by the Court on a case-to-case basis.
III. Factors considered by Court for grant of exemption
Nature of allegations, conduct of accused, inconvenience in personal appearance,[14] prejudice to the complainant[15], and distance at which the accused resides or carries on business[16] are generally relevant considerations to decide on exemption of personal appearance. Whenever personal appearance is insisted upon, there is some harassment to the accused; the courts must see that this harassment is not out of proportion to the seriousness of the allegations, or the severity of the possible punishment on conviction. [17]
The Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd[18] 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 he/she finds that insistence of personal presence would inflict enormous suffering or tribulations to the accused, and the comparative advantage would be nominal. While the Apex Court laid down aforestated principle in dealing with a summons case, it has thereafter applied the same principles in the warrant case of Puneet Dalmia v CBI[19].
IV. Conditions imposed for grant of exemption.
An analysis of the various case laws where exemption has been granted by the Supreme Court and the various High Courts leads us to the following four conditions which are generally imposed while granting an exemption from personal appearance to the accused. (1) That the petitioner would not dispute the identity as particular accused in the case; (2) that a counsel on his behalf will be present on all posting dates; (3) that the accused has no objection in taking evidence in his abeyance. (4) and that the accused would make himself available on any date when his presence is needed in the case.[20]
CrPC does not restrict a magistrate from fixing up conditions while granting an application for personal exemption. In certain cases, the court have insisted on deposit of the amount which is subject matter of the complaint in order to grant an exemption.[21] The accused may also need to submit an undertaking of not claiming any prejudice on account of his/her absence.[22] The court may also impose condition of executing a bond for any reasonable amount with solvent sureties.[23]
Furthermore, in cases where an accused has prayed for the exemption and the same has been granted, it is not open to the accused to complain that the exemption received was wrongly granted and trial, therefore, should be held to be null and void.[24]
It may also be important to bear in mind that under Section 205(2) and 317(1) of CrPC confer discretion upon the magistrate to the direct personal attendance of the accused at any subsequent stage of the proceedings and if necessary the magistrate may resort to other steps for enforcing attendance.[25]
Conclusion
CrPC does not provide any enumerative list of offences where an exemption from personal appearance should be granted. It leaves it within the powers of a court and judicial discretion of the judges to dispense with the personal appearance of an accused either throughout or at any stage of the proceedings based on facts and circumstances of the case. From a perusal of the jurisprudence that has evolved through various case laws, it can be concluded that in cases where insistence on the personal presence would itself inflict enormous suffering or tribulations on accused, and where the comparative advantage of having the accused physically present would be less, in such cases the courts must grant the accused exemption from personal appearance.
It is well settled that the process of the Courts should not be used for harassment of litigants and the appearance of the parties before the Court must be insisted upon only if it becomes absolutely necessary for some purpose.[26] As recognised by the Hon’ble Supreme Court, the purpose of the criminal court should be administration of justice and progress of the case; thus insistence upon appearance of the accused in all cases ought to be avoided.
For further information, please contact:
Bishwajit Dubey, Partner, Cyril Amarchand Mangaldas
bishwajit.dubey@cyrilshroff.com
[1] Gopalram and Ors v. State of Rajasthan and Ors. MANU/RH/0781/1994
[2] Ajit Kumar Chakraborty v. Serampore Municipality, 1989 Cr LJ 523 (Cal)
[3] Sushila Devi v Sharda Devi, (1961) 1 Cr LJ 819.
[4] Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401; Durowellds Pvt. Ltd. v. TISCO (2002) 94 Cut LT 726.
[5] Jairam and Ors. v. State of Rajasthan MANU/RH/0527/1996
[6] Halen Rubber Industries v. State of Kerala 1972 Ker LT 794.
[7] Halen Rubber Industries v. State of Kerala 1972 Ker LT 794.
[8] Hiremagalur Parthsarthy Shamalah v State of Bihar, 2010 Cr LJ 2375.
[9] Puneet Dalmia v. CBI (2020) 12 SCC 695
[10] RP Gupta v State of MP, 2007 Cr LJ 205.
[11] Abdul Gafoor v. State of Kerala MANU/KE/1971/2010; Sarath S v State of Kerala, 2018 Cr LJ 290; Benny P.R. v. State of Kerala 2017 SCC OnLine Ker 38293
[12] 1994 SCC (Cri) 303.
[13] Kamal Kumar Mohanty v State of Orissa (2001) 20 OCR 104.
[14] Hiremagalur Parthsarthy Shamalah v State of Bihar, 2010 Cr LJ 2375
[15] Ajay Kumar Bisnoi and Ors. vs. KEI Industries Limited (25.09.2015 – MADHC) : MANU/TN/3096/2015
[16] Sushila Devi v Sharda Devi, (1961) 1 Cr LJ 819; Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401
[17] Sushila Devi v Sharda Devi, (1961) 1 Cr LJ 819
[18] (2001) 7 SCC 401
[19] (2020) 12 SCC 695
[20] Puneet Dalmia v. CBI (2020) 12 SCC 695; Madan Bhai v DCM Financial Services Ltd, 2001 (1) Punj LR 39
[21] Vijay Lakhani v Jayesh Shah, (2016) 15 SCC 94.
[22] Kanwal Nain Bahadur v. State (NCT of Delhi), 2004 (112) DLT 900
[23] Abdul Gafoor v. State of Kerala MANU/KE/1971/2010
[24] Sultan Singh v State, AIR 1951 All 864
[25] Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401
[26] Ajay Kumar Bisnoi and Ors. vs. KEI Industries Limited (25.09.2015 – MADHC) : MANU/TN/3096/2015
