Exception from Appearance

 

Statue

1. Civil
2. Criminal
1. 205 CrPC  Chapter XVI - Commencement of Proceedings before Magistrates
1. Magistarte 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.
2. 317 CrPC Chapter XXIV , General Provisions as to Enquires and Trails . 
1. Provisions for the inquiries and trail being held in the absence of accused in certain cases
1. At ANY Stage of an inquiry or trail under this code, if the Judge or Magistrate is satisfied for reason to be recorded, that the personal attendance of the accused before the Court is NOT necessary in the interests of Justice. or that the accused persistently disturbs the proceedings in the court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trail in his absence, and may at any subsequent stage of the proceedings, direct the personal attendance of such accused.
2. if the accused in any such case is not represented by a pleader or if the Judge/ Magistrate consider his personal attendance necessary, he may if he thinks fit and for reason to be recorded by his, either adjourn such inquiry or trail or order that the case of such accused be taken up or tried separately.

Importan Points

1. Dispense with personal attendance
2. 205 CrPC -
1. Even before Charges are yet to be framed
2. Dispence  with appearance during trail/enquiry IF represented by counsel duly authorized by petitioner.
3. Proceeding before Magistrate 
4. Even the FIRST appearance through a counsel
5. Exempting personal attendance of accused would continue ever 
1. after charges have been framed and 
2. Till conclusion of the trail
6. Discretion on the court to exempt from appearance 
1. TILL such time his appearance is considered not necessary during the trial.
2. Bear in mind the Nature of the case and conduct of the person summoned.
3. Whether useful purpose is served by requiring the personal attendance of accused
4. Or progress of the trail is likely to be hampered on account of his absence.
7. 205 CrPC  - Nature of Special vakalat to represent the petitioner / accused and the counsel can answer to the questions put to him including his examination, so also examination under Section 313 CrPC
8. Plea of Guilty
1. Plea of the counsel can be taken for on behalf of accused even if the plea of one of guilty
2. Plea can be recorded through his counsel
3. 317 CrPC
1. During the trial stage i.e after charges have been framed.
2. Proceeding before Magistrate & Judge
3. Can be done for ONLY adjourning the case 
4. and NOT for proceeding with trial or enquiry of cases in absence
5. Absence of petitioner can be condoned either during trail or enquiry or trial
6. Being represented by advocate not a requirement.
4. 205, 317 CrpC - Don't apply to Complainant
1. Personal attendance may not always be insisted upon if represented by advocate
2. EXCPET in private complaint
1. Presence of complainant is considered to be NECESSARY if not by advocate.
2. in absence - case cannot proceed further.
3. Section 256 CrPC - if complaint fails to appear, Magistrate shall acquit the accused - discharge on default.
3. 
   
5. Court should take PRECAUTION
1. To take undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case 
2. Counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence.
3. Section 273 CrPC - Except as otherwise EXRPESSLY provided, all evidence taken in course of trail or other proceeding SHALL be taken in the presence of accused or when his personal attendance is dispensed with, in presence of his pleader.
1. Purpose of attendance of accused at trial is NOT merely a formality or compulsion but for the reason that the trail be allowed to be conducted in an expedient manner.
2. Such precaution in the interest of the accused so that the accused is able to know about the incriminating material if any, being produced in court against him at end of prosecution 
3. Further facilitate proper identification of the accused as evidence, identification before the court is SUBSTANTIVE piece of evidence.
4. Section 273 CrPC - Contemplates CONSTRUCTIVE PRESENCE - actual physical presence is not required 
5. Evidence
1. ALL statements which the court permits or requires to be made before it by witness in relation to matter of act under inquiry; such statements are called oral evidence 
2. ALL DOCUMENTS including electronic records produced for the inspection of the Court ; such documents are called documentary evidence;
6. IMPORTANCE & HISTORY OF 273 CRPC - LINK
7. A21 of Constitution of India - fair trial - Concept of ex-parte trail is alient
1. accused is NECESSARY both for 
1. framing charge and  - 228 CrPC
2. Recording of evidence  - 273 CrPC
6. What happens if the counsel engaged by the accused does not appear / co-operate ?
1. 205(2) - Magistrate can in his discretion direct the personal attendance of accused at any stage 
2. 317(1) - Confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of proceedings. 
3. Under 313 CrPC - power to examine the accused - insist the presence 
4. Issue Notice, BW, NBW,  Proclamation , sale of property to recover dues, 
7. Additional support for exemption
1. Petitioner to appear before the court on every date of adjournment is NOTHING but harassment to the petitioner.
2. ill Health, age, Physical disability
3. if other have been exempted
4. Security
5. Distance, hardship , expenses 
6. member of security forces
7. Travel often
8. Other good reason in the interest of Justice
9. Apply multiple times
10. Multiple case in different jurisdictions
8. What is Power  of court?
1. The question is one basically of attitudes and mind set
1. Traditional criminal courts would shudder at the though of criminal trail being held without the personal presence of the accused from stage of cognizance to stage of pronouncement of judgment.
2. Courts have to cognizant of changing times and the new breezes which sweep through the system of administration of Justice.
3. New generation courts will not and should not cause any avoidable inconvenience to any party, litigant or witness. 
4. The system exist not for the lawyer or the Judge but for the litigants- the seekers of Justice.
5. Undeserved truma CANNOT be inflicted on the litigants. 
6. The mandate of A21 of Constitution of India that procedural law MUST also be fair, reasonable and just and should not be arbitrary, capricious or oppressive will have to be borne in mind while considering & contemplating the procedures advantages to the litigants.
7. More reasons persuade the court to adopt suh a course
1. Corridors of the Criminal court in the state are thronged unncessarily by the litigants and not a day passes in this court in this jurisdiction u/s 482 CrPC without accused persons coming to lament before this court that they could not wade theri way through the crowd and reach the Magistrate in time when case was called.
2. By then their absence is noted and warrant of arrest are issued against them.
3. Need of the hours is FREELY INVOKE discretion u/s Section 205 CrPC - unless facts of a case give reason NOT to extend the benefit to accused.
2. Main Concern of Court is administration of Justice and court proceeding should register progress.
3. in cases of offence punishable with FINE ALONE, and involved NO MORAL TURPITUDE the EXCEMPTION should be RULE 
4. Serious / grave offense,  Court shall NOT ordinarily grant exemption to the accused from appearance before 
5. Serves Useful purpose requiring the personal attendance of accused
6. Progress of trail is likely to be hampered on account of absence.
1. if progress of trail is achieved even in ABSENCE of accused , the court can certainly take into account the MAGNITUDE of the sufferings which could be born in order to make himself present in court.
7. If warrant is issued for appearance i.e because he was not available warrant was issued
8. Don't favour application of 205CrPC in Serious offense  ( Gravity of offence )
9. Court should not be too technical or stringent although discretion should not be used liberally for mere asking of it.
10. It not only dispense with appearance but also can DIRECT the personal attendance of the accused at any stage of proceeding.
11. If at any stage court comes to conclusion that the accused person is trying to DELAY the completion of trail, it shall be free to refuse the prayer for dispensing personal attendance.
1. Cancel the bail bound and issue warrant of arrest 
12. Long delay in trail - Not grant exemption u/s 317 CrPC
13. 205 CrPC -  Discretionary power has to be exercised depending on  circumstances WITHOUT Subjecting the accused to any unnecessary harassment.
14. Court should not hesitate to dispense personal appearnce of accused UNLESS the interest of the prosecution would there by suffer or under Code itself the presence of accused is mandatory.
9. What to do if 205/ 317 CrPC are not accepted?
1. 482 CrPC - Session. / High Court
2. 397(2) CrPC - Power of revision shall not be exercised in relation to any interlocutory order
1. Sole Test of Interlocutory order is NOT Whether such order was passed during the interim stage
2. The feasible test is whether by upholding the objections raised by part, it would result in culmination of proceedings, if so any order passed on such objection would not be merely interlocutory in nature as envisaged in 397(2) CrPC
3. 362 CrPC : 
1. No Court when it has Signed its judgment or final order disposing of a case, SHALL alter or REVIEW the same EXCEPT to correct a clerical or arithmetical error.
10. Guidelines for exercising such discretion - Sheela Kumar Vs State of Bihar 
1. Where summons is issued at first instance, whether it may be summons case or warrant case, application under 205 CrPC can be allowe in categories as follows
1. If accused resides or carries on business at a far off place
2. On account of Physical reasons
3. If insistence of his personal presence would implicit enormous suffering or tribulation on him and comparative advantage of disallowing such petition would be less
4. Purdanashin woman
5. Old and Sick person
6. Factory workers and labourers
7. Busy business people or public functionaries
8. Corporate employees

Case Laws

1. TGN Kumar Vs State of Kerala & Ors MANU/SC1646/2011
1. Exempting personal attendance of accused would continue ever 
1. after charges have been framed and
2.  Till conclusion of the trail
2. Bhaskar Industries Ltd Vs Bhiwandi Denim & Apparels Ltd Ord MANU/SC/0489/2001
1. 205 CrPC - even on FIRST appearance through a counsel.
3. Sandeep Kumar Tekriwal vs The State of Bihar & Anr 2009 (2) PLJR 260
1. Issue warrant of arrest and proceed according to chapter VI CrPC ( Process to compel appearance ) , cancel bail and bail bond and proceed according to Chapter XXXIII CrPC ( Provisions of bail and bonds )
2. It should NOT be composite order of NBW, Cancellation of bail and bail bond
4. Raman Nair Vs State of Kerala ( 1999(3) KLT 714 ]
1. 205 CrPC can be invoked in summon/ warrant cases ever before or after personal physical appearance of accused before court.
5. Noorjahan Vs Moideen (2000 (2) KLT 756
1. Plea of guilt can be taken by the counsel of the accused when 205 CrPC & accused is exempted from appearance.
6. Jain babu Vs K.J. Joseph 
1. Discretion u/s 205 CrPC - Freely invoked.
7. Shir Chandramauli Prasad Vs State of Delhi
8. Sultan Singh Jain Vs The State
1. There is NO SECTION in CrPC which provides that the accused must be present at every hearing of the case, though there are several section sin the code which show that presence of the accused at certain stages of proceeding is specifically provided for. It is however, one of the vital principles of the administration of criminal justice, which is universal acknowledged that a criminal trail the court should not proceed exe parte againt an accused.
9. Rameshwar Yadav Vs State of Bihar
1. 498A & DP4 - Petition by business mand who has to travel 1700km sough exemption from appearing before court u/s 205 CrPC
2. Grant of exemption from personal appearance in court on each and every date was required to be considered in view of fact that application was filed much before appearnce in court and finally granted exemption.
10. Sushila Devi Vs Sharad Devi - MP HC
1. Excemption u/s 205 CrPC should be the rule
2. UNLESS it involves No moral turpitude and offence punishable only with fine.
11. Sheela Kumar Vs State of Bihar 
1. Guidelines when such power has to be exercised by Magistrate
2. Categories are illustrative not exhaustive
12. Jagadgureu Sachidanand Vs State of Mysore - 1968 - link

Source

1. https://www.mondaq.com/india/court-procedure/721810/dispensing-attendance-in-person-of-accused-differences-between-section-205-and-317-of-code-of-criminal-procedure-1973