This article is written by Diksha Paliwal, a practising advocate in the High Court of Indore and a student of LLM (Constitutional Law). The article talks about Section 317 of the Code of Criminal Procedure and discusses in detail the provisions relating to the attendance and non-attendance of the accused during the trial.
It has been published by Rachit Garg.
The presence of the accused during a trial is an indispensable and crucial part of criminal jurisprudence. The provision for the same is enumerated under Section 273 of the Code of Criminal Procedure, 1973. This Section provides for the compulsory presence of the accused at the time of taking evidence while the trial is going on unless his presence has been duly dispensed with. However, the Indian criminal justice system provides for certain instances where the accused is exempted from personal appearance before the court. It is important to note that this exemption is not a matter of right but a provision exercised at the court’s discretion. The article discusses in detail the conditions for the presence of the accused and the exemption granted to the accused from personal appearance.
Attendance of accused
Procuring the attendance of the accused, witnesses and other relevant persons before the court is an essential requisite for the inquiry, investigation or trial. The general rule of criminal jurisprudence says that the accused must be present at the time of trial and the court should not proceed ex parte against the accused person. This provision of compulsory attendance of the accused ensures a free and fair trial, which is an important principle of natural justice. The Code of Criminal Procedure expressly provides that the trial must not be conducted in the absence of an accused.
Section 204 CrPC
As soon as a proceeding commences before the Magistrate, he shall move forward with the issuance of the process as mentioned under Section 204 of the CrPC. The Section states that if the Magistrate is convinced that sufficient grounds exist to proceed against the accused, he shall issue a summons (in a summons case) to the accused for attendance or a warrant (in a warrant case) for appearance, as the case may be. It is important to note that no warrant or summons shall be issued by the Magistrate until and unless a list of prosecution witnesses has been filed.
The issue of process is a matter of the court’s discretion. The Magistrate before the issue of process shall examine the complainant. In the case of Rajendra Nath Mahato v. T. Ganguly, Dy. Superintendent of Police, Purulia (1972), it was held that the Magistrate who has not taken cognizance of a case cannot go ahead with issuing of process.
When a Magistrate issues a process, he is primarily concerned about the allegations that have been mentioned in the complaint or the evidence produced before him in support of the complaint. The only requirement the Magistrate must satisfy is whether sufficient grounds are present or not to initiate further proceedings against the accused. Recording the reasons by the Magistrate for the issuance of the process is an essential requirement, and not doing so may render it violative of Articles 21 and 14 of the Indian Constitution. The recording of reasons is a critical component of procedural fairness while dispensing justice. Although an order passed under Section 204 is not a final order, it is still justiciable.
In the case of Poonam Chand Jain and Anr. v. Fazru (2004), the Apex Court held that an order passed under Section 204 is not open for review or reconsideration by the Magistrate. Thus, an order issuing process cannot be reviewed or reconsidered because the Code does not contemplate the review of an order in such cases. However, under certain exceptional cases, as held in this case and some other judgements as well, a remedy may be sought by the appellant under Section 482 of the CrPC.
Different ways for securing attendance
In the case of M/S. Bhaskar Industries Ltd. v. M/S. Bhiwani Denim and Apparels Ltd. (2001), it was held that the attendance of an accused in an inquiry or trial is a mandatory condition that needs to be followed by the Magistrate to enable the commencement of a trial. The Code mainly provides four methods for securing the attendance of an accused, which are;
Attendance by way of summons
A “summons” is a legal document that orders or directs a person to appear before a court or Magistrate. The term is not defined in the Code. However, an idea of what the term means can be understood by Section 2(w) of the CrPC. The term “summons case” is used for a case other than a warrant case. Ordinarily, the summons is the first legal notice that is received by the party to a criminal case, stating that a case has been instituted against them. The summons is issued in cases that are not serious and in which the maximum punishment is not more than two years of imprisonment.
A Summons is a clement form of process issued to enforce an accused’s appearance. Section 61 of the CrPC deals with the forms in which a summons is to be issued. A summons must bear the court’s seal along with complete details of the person being summoned. The procedure that states how a summons is to be served is mentioned under Section 62 of the Code, whereas the procedure for serving a summons on corporate bodies and societies is enumerated under Section 63 of the Code. The procedure for service in cases where the person to whom the summons is served cannot be traced is enumerated under Section 64. The other provisions concerning the service of summons are mentioned from Section 65 to Section 69 of the CrPC.
In the case of State v. Driver Mohmed Valli and Ors. (1960), it was held that “making of an order by a court to issue a summons” and “issuing of a summons” are two completely different things.
Attendance by way of warrant of arrest
The term “warrant” means an order by the Magistrate passed to arrest a person, which includes witnesses as well and present him/her before the court. A warrant of arrest is a document authorising and commanding the concerned authority to arrest a person. Ordinarily, a warrant is issued in a warrant case. However, if the Magistrate deems fit, it can also be issued in a summons case, as mentioned under Section 204 (1)(b) of the CrPC. It can also be issued in instances of breach of a bond, as mentioned under Section 88 of the CrPC. Sections 70 to 81 of the CrPC deal with the provisions relating to warrants of arrest.
Section 70 of the CrPC mentions the form in which an arrest warrant is made. The warrant of arrest should be in a form prescribed in Form No. 2, Second Schedule of the CrPC. Section 71 of the CrPC provides for the issuance of a bailable warrant. However, it does not empower the court to deliver the arrested person to someone else. In the case of Ram Achhaibar v. State (1988), it was held that a non-bailable warrant cannot be issued against an unwanted person. Section 72 of the CrPC specifies to whom a warrant should be directed. Usually, a warrant is directed to the police. However, this Section provides that, under certain circumstances, it can be directed to persons other than the police if the conditions demand so.
In the case of State Through CBI v. Dawood Ibrahim Kaskar and Ors. (1997), it was held that a warrant issued under Section 73 of the Code is issued to direct a person to appear before the court only and not before the police.
The police must inform the substance of a warrant to the person against whom a warrant is issued and if so required, shall show him the warrant also.
Attendance by way of proclamation and attachment
The courts have been empowered with sufficient powers to ensure the execution of warrants issued against an accused. Sections 82 to 86 of the Code deal with such powers of the court regarding the proclamation and attachment. In cases where a warrant is unexecuted, the court may issue a proclamation under Section 82 of this Code, or the property of the person against whom the warrant was issued can be attached as per Section 83 of the Code. Usually, in the first instance, the court issues a summons. In cases of failure on the part of the accused, the court shall issue a warrant of arrest. In a situation where the execution of the warrant also fails, in such a case the court may proceed with the issuance of proclamation (Section 82) and attach the property of the person (Section 83) who is eluding or dodging the service of process.
In the case of Dinesh Chandra Tiwari v. State of U.P. and Ors. (2000), the applicant’s name was present in the F.I.R. However, he was not challenged after the investigation. The evidence that was discovered showed the involvement of the applicant in the alleged offence. Based on the evidence that was procured, the trial court executed a non-bailable warrant against the applicant and simultaneously issued a process under Section 82. The Allahabad High Court held that the trial court is required to issue a summons first, and under the act of non-compliance with the summons, the court should have moved further with a non-bailable warrant and other processes. The court should not directly move forward with the issuance of a non-bailable warrant.
Sections 87 to 90 provide other rules that provide for the appearance of the accused. Section 87 of the Code provides for the issuance of a warrant as an alternative to or in addition to a summons. As provided under this Section, the court can do so in a case where there appears to be a reasonable possibility that the person against whom the summons is to be issued or has been issued already may abscond or l not obey the summons. However, the court must record the reason in writing for issuing the warrant.
According to the provision provided under Section 88 of the Code, the court may ask for a bond or an amount of surety for the appearance of the accused.
The Code also provides for the provision of arresting the accused in case of breach of the bond of appearance. The court can order the arrest of such a person who has not complied with the direction of the court to appear before it. This provision is enumerated under Section 89 of the Code. In the case of Pannalal v. R.K. Sinha (1965), the Court held that Section 89 provides a right of cancellation of bond and orders a rearrest of the accused or witness in case he fails to appear before the court.
Section 90 of this Code provides that the provisions of Chapter VI of the Code apply to all summons and warrant cases.
Section 205 CrPC
All the cases in which summons are issued come under the purview of Section 205 of the CrPC. The Section provides for the condition that the Magistrate may dispense with the personal attendance of the accused. It states that if the Magistrate has enough reasons to issue a summons, he may dispense with the personal attendance of the accused and permit his pleader to appear on his behalf. However, if the Magistrate, as per his discretion, feels that the accused’s attendance is necessary at any stage of the proceeding, he may pass such order by issuing a summons. However, if a warrant is issued against a person, then the Magistrate cannot dispense with the accused’s personal attendance.
As for women, they do not possess any specific rights where they are exempted from appearing in court during an inquiry or a trial, but they should not be forced to appear before the court unless the conditions necessarily demand so. The court shall move forward with dispensing the accused’s attendance after considering several factors like her social status, customs and practices, and the intensity of her personal appearance in light of the nature of the offence and the trial stage. This view was opined by the Calcutta High Court in the case of Rajlakshmi Devi v. the State (1951).
In the case of S.V. Majumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. (2005), it was held that the court shall consider whether any useful purpose will be served if the accused is brought for personal attendance. It shall further consider whether, in the absence of the accused’s attendance, the progress of the trial will be hampered while dealing with an application for dispensing the attendance of the accused. In case the Magistrate feels that the accused is seeking this application to cause a delay in the trial, he may refuse the accused’s application.
Section 317: an overview
As per the provisions of Section 317 of the CrPC, the presence of an accused in a trial or inquiry can be exempted by the judge or Magistrate if the court deems it fit. This Section is almost the same as that of Section 540A of the earlier code (repealed), i.e., the Code of Criminal Procedure, 1898. The only change that has been carried out in the present Section is the addition of the word “or that the accused persistently disturbs the proceedings in court” in 317(1).
Subsection (1) of this Section states that if the judge or Magistrate is satisfied that the personal attendance of the accused is not necessary for the interest of justice or if the accused interrupts the proceedings of the court at any stage of a trial or inquiry, proceed further with the trial, thereby dispensing the presence of the accused. Provided that the accused is represented by his pleader in court. Also, the Magistrate or judge has to record the reasons in writing if he orders such a dispensation.
The second subsection of Section 317 of the CrPC provides that in case the accused is not represented by a pleader, or if the court considers his attendance necessary, then the court may either adjourn the trial or try the case separately. However, the judge or Magistrate shall positively record the reasons in writing.
It is important to note that the provisions of Section 317 do not apply to the trials that are initiated under the Prevention of Corruption Act, 1988. However, an exception has been added to this well-settled principle of law after the insertion of Section 22(c) in the Prevention of Corruption Act, 1988. As per this subsection, the special judge has been entrusted with the power to proceed with the trial or inquiry at any stage in the absence of the accused or even his pleader. Although subsections (1) and (2) do not apply to such trials.
Scope and applicability of Section 317 CrPC
This Section 317 empowers the court to proceed further with the trial or inquiry, thereby dispensing with the personal attendance of the accused. This is done by the court if the accused’s attendance is not felt necessary keeping in view the interest of justice or if the court finds the accused’s presence creating a disturbance in the trial. However, if in the later stage of the trial or proceedings, the court finds the accused’s presence necessary, then the court may order the accused to attend the trial or proceeding.
The term “inquiry,” which has been used in this Section is defined under Section 2(g) of the CrPC, whereas the term “trial” connotes the stage when a change has been made, read, and finally explained to the accused. In the case of Dhiria and Ors. v. Jai Narain and Anr. (1969), it was held that the proceedings begin as soon as the Magistrate takes cognizance of the offence and examines the complainant and the witnesses as prescribed under Sections 200 and 202, respectively. The court went on to say that all the proceedings after this fall under the purview of an inquiry, and the accused can file an application under this Section even while such an inquiry is pending.
In the case of Haranahalli Ramaswamy v. K. Shama Rao S/O Hanumantha Rao (2009), it was held that the accused under this Section cannot be granted a permanent exemption for appearing before the court. Also, he shall be granted such an exemption only on a legally acceptable ground and not on some unnecessary or irrational ground.
When can the attendance of the accused be dispensed with
An accused’s personal attendance can be exempted or dispensed with either under Section 205 or Section 317 of the CrPC. A joint reading of the two sections makes it crystal clear that an accused’s presence can be exempted at any stage of the inquiry or trial. Several factors like the circumstances of the case, the accused’s condition, and the necessity of the accused’s personal attendance are taken into consideration while exempting or dispensing with the attendance of the accused during a trial or an inquiry. The facts and circumstances of the case solely determine whether the accused shall be granted the exemption or not. Usually, an accused’s personal attendance is compulsory in cases of serious offences that involve moral turpitude. However, if the punishment for offences is fine only, exemption from personal attendance has become a rule, and for the former situation, the presence of the accused is the rule. This view was reiterated by the Apex Court in the case of Sushila Devi v. Sharda Devi (1960).
Ordinarily, the court allows the application of the accused and exempts him from appearing in the inquiry or trial, where the accused’s attendance may cause disturbance and inconvenience in the proceeding. Also, it should be noted that the comparative advantage should not outweigh the absence of the accused. The court has time and again emphasised this point while dealing with applications under this Section, the cases of M/S. Bhaskar Industries Ltd. v. M/S. Bhiwani Denim and Apparels Ltd. (2001) and Durowelds Pvt. Ltd. and Ors. v. TISCO (2002) are two such cases.
The nature of the allegations, the quantum of prejudice to the complainant based on the presence of the accused, the conduct of the accused, and the distance at which the accused resides or carries his business are some other factors that should be considered by the court while dealing with an application under this Section. The court shall emphasise the presence of the accused only when it is in the interest of the accused to be present at the trial or if the Court deems it necessary for the fair and effective disposal of the case. Take, for instance, an accused’s presence, which is crucial in the identification of the witnesses. Also, the High Courts and Supreme Court have held in various instances that the court shall deal with these applications liberally in trivial and technical cases where the accused is an old person, a sick man or woman, a woman, a factory worker, or a daily wager.
Application for exemption from personal attendance of accused
An accused is entitled to file an application for exemption from appearing personally in court either under Section 205 or under Section 317 of the Code, as the facts and circumstances of the case may be. In a case where only summons have been issued, the accused can file an application under Section 205. When the trial or inquiry is pending, the accused can seek an exemption under Section 317 of the Code. The accused can file such an application through his pleader, or he can ask the court himself for exemption by providing the reasons behind his plea for exemption. There is no hard and fast rule expressly provided under the code that clarifies the conditions in which such an exemption is to be granted. The grant of exemption is however a discretion of the court and is not a matter of right. However, as discussed above and quoted in a plethora of judgments, the court must not unnecessarily enforce the presence of an accused, even if the trial or inquiry does not necessarily demand the accused’s presence.
In the case of Lalit Mohan Deb Burman v. Haridoy Ranjan Deb Burman (1956), it was held that the applicant is not necessarily required to file a written application under this Section. The Magistrate has the authority to move forward in the presence of an oral application also.
In the case of Arvind Kejriwal v. State of U.P. (2015), it was held that Sections 205 or 317 of the CrPC, which provide an exemption to the accused, will not apply in warrant cases until and unless the accused has been released on bail or has furnished bail bonds.
The courts in various instances have given the exemption to the accused by using the term “incapable of remaining before the court.” This term connoted that the accused is not physically fit or denoted the physical inability of the accused to be present before the court. However, it is not necessary that this incapability only denotes physical ailments. There may be some other reasons also that render the accused from coming before the court. Also, in the case of Trilochan Misra and Ors. v. the State (1951), it was held that a mere point of heavy expenditure or inconvenience in travelling to the court will not render the accused incapable of coming to the court.
How is Section 317 different from Section 205
Although the two Sections have a wide range of similarities, they both have a clear distinction from each other. Section 205 comes into the picture even before the charges are framed, and the proceedings have just begun. Under Section 317, the accused can be given an exemption when the trial or inquiry of a case is pending, whereas, in Section 205, such an application is filed at an early stage, at the time when just summons have been issued. This view was clarified by the court in the case of Aditya Pd. Bagchi v. Jogendra Nath Maitra (1948), which was again reiterated in the case Sultan Singh Jain v. the State (1951).
Section 317 deals with exemption after the commencement of a trial or inquiry and has a scope till the expiration of the trial, and Section 205 deals with exemption at the beginning of the proceedings. Although in both Sections the court can dispense with the accused’s attendance even in the absence of prayer by the accused if the Magistrate thinks that the accused’s absence won’t hinder the course of justice. However, he shall record the reasons in writing. By Section 205, the accused can be allowed to make even his first appearance before the court through his counsel.
Another important distinction between the two is that Section 205 can only be exercised by a Magistrate. However, powers provided by Section 317 can be exercised by both the Sessions Judge as well as a Magistrate.
Also, it is crucial to understand that both of these Sections are in respect of dispensing the trial in relation to the accused only. It does not apply to the complainant. In cases of the complainant, the personal presence of the complainant is not necessarily required at every hearing, except in the cases of a private complaint.
Sushila Devi v. Sharda Devi (1960)
Facts of the case
In the present case, the applicant, Sushila Devi, through her son, filed an application for revision, aggrieved by the simultaneous orders passed by the Magistrate and the Sessions Judge who had dismissed the applicant’s plea for dismissing the complaint that had been filed against her. She was charged under Sections 494, 496, and 109 of the Indian Penal Code, 1860. Along with the quashing of the complaint that had been filed against her, she also pleaded that she might be exempted from personal attendance as per the provision enumerated under the Code of Criminal Procedure.
The issue before the Court was to determine if she should be given an exemption from personal attendance and to establish some general principles that can be applied in similar cases.
Judgement and observation
The Madhya Pradesh High Court held that the permission to grant exemption from personal attendance is exercised after considering numerous factors, like the circumstances of the case, the accused’s condition, and the gravity of his personal attendance. However, since each case is different from the others, the final decision will solely depend on the facts and circumstances of the case. Usually, it is a rule that an accused should be personally present in cases involving serious offences. On the contrary, in cases that involve petty offences punishable with a fine only and do not involve moral turpitude, then exemption from personal attendance is the rule. In this particular case, the Court held that since the offences were punishable with seven years imprisonment and a fine, the Magistrate was right in dismissing the accused’s application seeking to dispense with her attendance.
Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2000)
Facts of the case
In this case, M/S. Bhaskar Industries Ltd., an appellant company in the present case, filed a criminal complaint before the Judicial Magistrate of First Class, Bhopal, against 15 accused under Section 138 of the Negotiable Instruments Act, 1881. The first accused is a company registered in Haryana, whereas the second accused is the Managing Director of that company, and the rest of the accused are persons related to the first accused. After receiving the complaint, the Magistrate issued summons to all the accused after taking cognizance of the case. This Special Leave Petition filed before the Apex Court is concerning an interlocutory order passed in respect of the second accused’s case.
Later on, it was found that the second accused was not found at his residence and other members of his house refused to accept the summons. Hence, the notice was affixed by the authorities on the accused’s residence. Owing to this the Magistrate issued a non-bailable warrant against the second accused. Thereafter, the accused filed an application for exemption from personal attendance. The Magistrate without deciding the said application ordered the release of the accused on bail if arrested and directed the accused to be present before the Court to furnish security by executing a bond of Rs. 5000/-.
All the 15 accused filed a revision petition against this order of the Magistrate before the Sessions Judge. The order of the Magistrate was set aside by the learned Sessions Judge. This decision of the learned Sessions Judge was challenged before the High Court. However, the decision of Sessions Judge was upheld by the High Court. Hence, the appellants preferred this petition before the Hon’ble Apex Court.
The Hon’ble Court had to first decide whether the order that was challenged before the High Court could have been entertained or not.
The other issue that the court had to decide was whether the Magistrate has the power to dispense with the accused’s presence in the proceedings either throughout or at any particular stage of proceedings in a summons case, especially in the case when the Magistrate feels that the person’s presence may inflict sufferings upon him and that the comparative advantage would be less.
Judgement and observation
The order of the Sessions Judge was set aside by the Apex Court, and the second accused was given the liberty to file a fresh application for exemption from personal attendance. The Court held that in general instances the application seeking exemption shall be allowed especially when insisting the presence of the accused may cause serious difficulty and inconvenience. Also, if the comparative advantage of the accused’s presence does not outweigh the absence of the accused, then the court shall consider giving an exemption to the accused from personal appearance. The Court further held that it is well within the power of the Magistrate to dispense with the accused’s presence throughout or at any particular stage of the trial.
The Apex Court further relied on these principles in the case of Puneet Dalmia v. Central Bureau of Investigation (2019).
Kajal Sengupta v. M/S. Ahlcon Ready Mix (2012)
Facts of the case
In this case, the petitioner filed an application to quash the order of the subordinate court. A complaint was filed against the petitioner by the respondent under Section 138 of the Negotiable Instruments Act, 1881. The petitioner filed an application under Section 482 of the Code for quashing the complaint along with filing an application for exemption from personal appearance. The court directed the petitioner to file the application for exemption before the concerned Magistrate and dismissed the plea to quash the complaint. The learned Magistrate allowed the petitioner’s application for exemption from personal attendance. The respondent filed for revision of the learned Magistrate’s order for granting exemption from personal appearance. Later on, the Magistrate directed the petitioner to appear before him personally and not through his counsel. Being aggrieved by this, the petitioner filed an application for quashing of the complaint and to allow her to be represented by her counsel.
The issue before the Hon’ble High Court was to decide whether the petitioner shall be exempted from appearing before the court and to allow her to be represented by her counsel.
Judgement and observation
The petition was dismissed, and the court directed the petitioner to be present on the next date of the hearing. The Court went on to say that if the Magistrate after looking at the facts and circumstances of the case, is of the view that great hardship and inconvenience will be caused to the accused, then he can dispense with the accused’s personal attendance and allow him to appear through his counsel. However, this exemption shall not hamper or delay the trial. Even if the Magistrate has exempted the accused’s personal appearance, he can still ask the accused to be present before the court at any stage of the trial if deemed necessary. The permanent exemption from attending shall not be considered a blanket order exempting the accused from attendance, and this shall be subject to the provisions of Sections 205(2) and 317(1) of the CrPC.
Cardinal Mar George Alencherry v. Joshi Varghese & Ors. (2022)
Facts of the case
In the present case, the accused filed an application to exempt himself from appearing personally before the court. The applicant pleaded before the Hon’ble High Court of Kerala to direct the Judicial Magistrate of First Class to exempt the accused from personal attendance. The case against the accused was instituted by way of filing private complaints by the respondents. The offences for which the accused was charged were; Section 406, 423, 120B read with Section 34 of the Indian Penal Code, 1860. Summons were issued to the accused by the Magistrate. Thereafter the accused filed an application for exemption from attending the proceedings. Even before deciding the applications, the court directed the accused to appear in person.
Whether the Court shall insist on the accused’s personal attendance or shall allow the application of the accused regarding the direction to the Magistrate?
Judgement and observation
The Kerala High Court held that when an accused is seeking exemption from a first appearance, the standards that are to be applied should be more stringent. It further dismissed the petition of Cardinal Mar George Alencherry, who was accused in the matter of an illegal sale of the land that belonged to the Church. The grant for exemption from appearing before the court is a matter of the court’s discretion.
S. Nalini Jayanthi v. M. Ramasubba Reddy (2022)
The applicant S. Nalini, in the present case was charged under the offence of Section 138 of the Negotiable instruments Act, 1881. In the case that was instituted against her, she filled out an application for the transfer of the case at her convenience. The Apex Court dismissed her plea of transfer of petition. However, the court held that the applicant being an old woman, can always seek for exemption from personal appearance.
Ajay Kumar Bisnoi v. M/S.Kei Industries Limited (2015)
In the case of Ajay Kumar Bisnoi, the Madras High Court held that the Magistrate while passing an order for exempting the accused from the personal presence, should maintain a balance between the two things, namely, the order shall not prejudice the complainant, and the order for the attendance of the accused if passed, shall not cause unnecessary inconvenience and hardship to the accused.
Section 317 of the CrPC deals with the provision for granting the accused exemption from personally appearing before the court and further allows him to be present in the proceedings through his counsel. The Code does not provide for a specific list of offences under which such an exemption shall be granted or a list of offences under which such exemption shall not be granted. However, the courts in various cases have held that when the presence of the accused will cause enormous difficulties and inconvenience to the accused, he shall be exempted from appearing personally. The litigants shall be insisted to be present before the courts only if it is absolutely necessary. Also, in cases which involve moral turpitude, the courts have held that the presence of the accused becomes necessary.
Frequently Asked Questions (FAQs)
Is the presence of the accused necessary at the time of passing of an order?
The presence of an accused is not necessary at the time of passing of an order if the accused was present in the proceedings in previous hearings.
Can an accused in a later stage claim that the exemption was wrongfully granted to him?
It was held in the case of Aditya Pd. Bagchi v. Jogendra Nath Maitra (1948), the Allahabad High Court held that a trial cannot be held null and avoid if an order has been passed in the absence of the accused, where he filed an application for grant of exemption from appearing before the court. He cannot say that the exemption was wrongfully granted to him.
Can the court insist on the personal appearance of the accused?
The court is empowered to insist on the presence of an accused, but only if the accused’s presence is absolutely necessary. However, the court shall duly observe that no harassment shall be inflicted upon the accused appearing before him.
Can an accused be granted relief from personal appearance if simultaneous criminal cases are going against him in different courts?
The Apex Court in the case of Narinderjit Singh Sahni and Anr v. Union of India and Ors. (2001), held that an accused cannot be necessarily granted exemption from personal appearance only on the ground that simultaneous cases are going against the accused in different courts. However, the accused is entitled to file such an application before the concerned court.
- Sarkar, The Code of Criminal Procedure, 11th edition (2015).
- DD Basu, Code of Criminal Procedure, 1973, 6th edition.
- Justice M.L Singhal, Volume 2, Sohoni’s Code of Criminal Procedure,1973, 22nd edition.
- S.N. Mishra, The code of criminal procedure, 1973, 21st edition.
- The Code of Criminal Procedure, 1973.
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