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This article is written by Anushka Singhal, from Symbiosis Law School, Noida. In this article, she discusses whether the presence of an accused is necessary for a criminal proceeding. She also tries to throw some light on the appointment of power of attorney by an accused. 

Introduction

The Indian legal system follows the principle of ‘innocent until proven guilty’. Guilt is not presumed in any case until the trial concludes. We often interchangeably use the words like accused, convict, and prisoner. There is a stark difference between these three words. An accused is a person on whom there is a suspicion of committing a wrong. When his wrong is proved in a court of justice, he becomes a convict, and when his imprisonment terms start he is called a prisoner. The rights of all these three persons vary. An accused has certain rights before, during, and after the trial. Right to be present during the trial is one of them. Let us discuss if the presence of an accused is necessary during a criminal trial and if he can appoint a power of attorney.

Provisions for the presence of an accused during a criminal trial in India

The substantive part of criminal law is dealt with by the Indian Penal Code,1860 while the procedural part is dealt with by the Code of Criminal Procedure,1973. Thus, the provisions regarding the presence of an accused during a criminal trial are laid down in the Code of Criminal Procedure. Going by the ideals of a ‘fair trial’ an accused should be present at the proceedings as it will give him a chance to clarify his point whenever the prosecution is taking the case to the wrong side. However, the Code of Criminal Procedure does not make the presence of an accused mandatory at a criminal proceeding. Section 317 of CrPC lays down that a trial can be held without the accused if the judge or the magistrate is satisfied in the following cases:

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  1. If the personal attendance of the accused is necessary for the interest of justice.
  2. If the accused disturbs the court proceedings.
  3. If there is a pleader of the accused, then he may be exempted from attending the proceedings. 

The Section lays down that if the presence of the accused is extremely necessary for the case and the accused cannot be present on that particular day, the Court may adjourn the proceedings. 

Section 273 of the Code lays down that all the evidence should be admitted in the Court in the presence of the accused and if the accused is excused from the attendance in the Court, then his pleader must be present at the proceedings. While Section 205 of the CrPC lays down that the magistrate may dispense with personal attendance of an accused. A magistrate can allow the accused to be represented by a pleader and the same magistrate can later call upon the pleader before the Court as and when he desires. Section 205 and Section 317 of the CrPC somehow overlap but there is a difference between the two. Let us attempt to lay down some differences between the two.

Difference between Section 205 and Section 317 of CrPC

The provisions of these two Sections are different and are not completely the same. Under Section 205 of the CrPC will be applicable when the proceedings have begun under the magistrate and charges are yet to be made. An absence granted under this Section would continue up to the end of the trial. In TGN Kumar v. State of Kerala and Ors.,(2011)  the Hon’ble Supreme Court held that the powers granted to the magistrate under this Section are discretionary in nature. The Court has to examine whether the presence of the accused would serve any important function to the court or would his absence hamper the proceedings of the case. 

On the other hand, Section 317 comes to play during the trial. It will be invoked when the charges have been framed while Section 205 is invoked even before that. Section 205 can only be exercised by a magistrate while Section 317 can be exercised both by the magistrate and the sessions judge. Thus, these two Sections are different when it comes to the procedural aspect and the similarity is in the purpose i.e. the acquittal of the accused. 

Approaches for exemption from attending criminal proceedings

The courts adopt two approaches while granting an excuse to a person from attending criminal proceedings. The liberal and strict approach is generally adopted by the courts while granting an exemption. The magistrates can also put any number of conditions as they wish before granting an exemption. Courts can ask an accused to pay a certain sum of money for being exempted from presence in the court, they can ask him to serve an undertaking or impose any other condition. 

Liberal or generous approach

Indian courts have generally adopted a generous approach in granting exemption to the accused. In the case of Halen Rubber Industries v. The State of Kerala,(1972) it was held that in all trivial and technical cases involving women, elderly, sickly, daily wage workers, factory workers, business people or industrialists should be excused from their attendance in the court. The Hon’ble Court held that one should exercise discretion liberally in such types of cases. The Court also takes into consideration the hardships caused due to travel to the court on an almost daily basis. Exemptions have been granted to the people working abroad and being accused in India. The courts do not grant exemption when they feel that the proceedings are being affected and the case demands the presence of the accused. Let us discuss all such situations with the help of case laws-

Puneet Dalmia v. CBI (2019)

In this case, the appellant was accused under the Prevention of Corruption Act, 1988. The appellant had to travel every Friday from Delhi to Hyderabad to attend the hearing of his case at the trial court. He sought an exemption from the magistrate under Section 205 of the CrPC which was rejected by the trial court. The application was opposed by the respondent CBI and the trial court rejected his application for exemption. The appellant appealed against the impugned orders to the Delhi High Court which further rejected his contention. The case went to the Supreme Court, the Court held that the appellant should be granted an exemption from coming to the court. It held that the presence of the accused should not be for the purpose of just seeing him in court. His advocate should be present each time but he can be granted an exemption owing to the hardships faced by him. 

Sarath S v. State of Kerala (2019)

In this case, the applicant was employed in Sharjah and he came to India very little as he was not granted leave easily by his employer. A case was registered against him in India. He came to know of the case when the warrant reached his residence in India. As he could not come to India on such short notice, he filed an exemption application under Section 205 of the CrPC. The trial court rejected his application only on the grounds that as the warrant was issued already, nothing could be done. The case went on appeal to the High Court which held that pendency of warrant cannot be the ground for refusing the request under Section 205 Cr.P.C. if appropriate grounds are made out. The Court held that since the appellant was stationed outside India and could not come due to his employment, he can be exempted from appearing before the court. 

Strict approach

A strict approach is applied in those cases where there are serious allegations against an accused. Rape cases, murder cases and other serious allegations under the Indian Penal Code would lead to the denial of an accused’s exemption application. A subjective approach is taken in deciding cases in which the strict rule will apply and in cases where a generous approach will be taken. For example, in the case of Ajay Kumar Biisnoi v. M/S Kei Industries, (2015) the Court laid down that the order of the magistrate in the exemption cases should be as such that it does not cause any prejudice to the complainant and any unnecessary hardship to the accused. Following are some of the cases in which the Hon’ble Courts adopted a strict approach-

Lily Begum v. Joy Chandra Nagbanshi (1993)

In this case, the accused was charged under Section 376, 417, and 506 of IPC. The petitioner went to the High Court and asked it to quash the proceedings against him. The High Court did not quash the proceedings but it asked the Trial Court to exempt him from coming to the Court under Section 205 of the CrPC. This exemption was challenged before the Supreme Court which held that an exemption cannot be filed in such cases of grave nature. It held that if such privilege is granted in cases of this type then people may lose their confidence in the justice system.  

Power of attorney

According to Section (1-A) of the Powers of Attorney Act, 1882 a power of attorney “includes any instrument empowering a specified person to act for and in the name of the person executing it.” Power of attorney is based on the principle, ‘Qui facit per alium facit per se’ i.e. he who acts through others, acts through himself. Through a power of attorney, a person appoints another person to act in his name and is liable for all such acts committed by that person. The Powers of Attorney Act is a short Act with 5 Sections that lays down the provisions regarding definition, execution, payment, the deposit of instruments and power of attorney of a married woman. 

Appointment of power of attorney by an accused

Section 2 of the Powers of Attorney Act which lays down the provisions for the execution under power of attorney cannot override any special law which states that a particular act has to be done by a particular person. A magistrate can exempt any accused from attending the criminal proceedings and allow only his counsel to appear on his behalf. Section 303 of the CrPC lays down that any accused has a right to be presented by a pleader of his own choice. A pleader is defined under Section 2(q) of the same Act which says that a pleader can be a person authorised under law or can be any other person appointed with the permission of the court.

Whether power of attorney can come under the ambit of such a ‘pleader’ is a question of fact in each case. The case of T.C. Mathai & Anr vs. The District & Sessions Judge (1999)  is a good authority on the question of whether an accused can appoint a power of attorney or not. In this case, an agent of a couple settled abroad wanted to appear before the court on their behalf. His request was declined by the Court and the Court held that “An agent with a power of attorney to appear and conduct judicial proceedings, but who has not been so authorized by the High Court, has no right of audience on behalf of the principal, either in the appellate or original side of the High Court.” 

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Also, there have been questions on whether a lawyer can appear in the court in his personal capacity as a power of attorney and even the courts have allowed a non-legal person who is a power of attorney to be appointed as a pleader for an accused. Some cases have even denied the right of the audience to such power of attorneys. Let us discuss all such cases. 

Brenda Barbara Francis v. Adrian Mirinda (2016)

In this case, an advocate approached the Kerala High Court in the capacity of a pleader and not as an advocate. In normal circumstances, the rules governing excused attendance and appointment of a pleader are governed by the CrPC, and also the courts are bound by the precedence of the T.C. Mathai case but in these circumstances, the Court held that the Advocates Act,1961 would come into play. There is an embargo for an advocate under Section 32 of the Advocates Act and therefore the advocate was not allowed to present as a power of attorney. 

Harishankar Rastogi v. Girdhari Sharma and Anr. (1978)

In this case, the appellant requested the court to appoint a person who was not an advocate to handle his case and said that he did not want the help of the amicus curiae appointed by the court. The Hon’ble Court after going through the provisions of the Advocates Act and the Code of Criminal Procedure held that it is upon the discretion of the court to appoint such a person. The Court can even appoint such a person and later halfway through the case remove him. Thus when the pleader is a non-advocate and does not have the legal power of attorney it is the discretion of the court that comes into play.

Conclusion

We have ensured that an accused has certain rights. By providing the right of exemption we have ensured that we live up to the spirit of ‘innocent until proven guilty.’The Courts have tried to strike a balance between the rights of an accused and a victim by adopting two kinds of approaches while dealing with an application for exemption. The rules regarding power of attorney have been laid down and it appears that when it comes to legal proceedings, a power of attorney does not have many rights. The above cases illustrate the same and have even laid down that a power of attorney can also not be an audience. 

References

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