I, as a young advocate, after 3-4 years of experience in legal field (that too on subject of commercial crime in banking sector), realized that criminal procedure code of India is largely inclined in favour of accused. The CrPC is replete with provisions which favour the accused largely and these provisions are legislated as a matter of right for them. One such provision is section 205 of CrPC. Though this section talks about the exemption from personal appearance of accused in court of law, but magistrate courts (who enjoys jurisdiction under this provision) generally fails to apply the Judicial mind or misinterpret it while deciding the application filed by accused on this behalf.

I take this occasion to write this small piece on section 205 of Crpc with all of its applications and exceptions.

What is section 205 CrPC:

Sec 205 of the Code of Criminal Procedure, 1973 contemplates that whenever a magistrate issue summons, he may, if he sees reasons to do so, dispense with the personal attendance of the accused and permit him to appear by his pleader. It also contemplates that at his discretion, he may enforce such attendance.

The objective of legislation behind the formulation of this section may be derived from section 273 of the code. Section 273 envisages that the evidence has to be taken in the presence of the accused. However, it provides an exception that if the personal attendance is dispensed with, the same can be taken in the presence of his pleader. The exceptions of section 273 crpc are provided in the form of sec 205, 299 and 317, which describe certain circumstances in which the presence of accused can be exempted by court.

A conjoint reading of all the provisions of the Code of Criminal Procedure, 1973 shows that though it is an essential principle of criminal law that trial of indictable offence has to be conducted in the presence of the accused, but it is left to the discretion of court to exclude the accused from appearance in court under some justifiable circumstances.

Circumstances under which Magistrate may use sec 205 CrPC:

There is no straight jacket formula or thumb rule to identify the circumstances to give exemption to accuse rather it depends on case to case. The power under section 205 crpc is based on the discretion of magistrate but this discretion can't be used arbitrarily without reasons.

In the case of Bhaskar industry Ltd. v/s State, honourable Supreme Court 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 the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less.

Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice."

Precautions need to be taken by magistrate while granting exemption under section 205 CrPC:

Exemption from appearance in the court in a summon case is subject to the discretion of magistrate, which needs to be given after due deliberation. Magistrate may ask the accused to give undertaking by way of affidavit on following subjects:

A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. Physical distance is one of the most important factors.

An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning.

An undertaking that he would not raise any grievance on that score at any stage of the case.

That if at any stage of the proceeding, the petitioner is required by the trial Court; he shall have to appear in person.

An undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case.

That a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence.

Besides these undertakings, magistrate may ask the accused to accept any other condition imposed on this behalf by magistrate for smooth and expeditious trial.

Does exemption from appearance under section 205 crpc may be termed a 'total exemption' for whole of the trial:

In a catena of Judgments, courts have ruled that the exemption from personal appearance by magistrate can last upto conclusion of trial unless court/magistrate feels it necessary to call his appearance in interest of justice.

Certain provisions in crpc expressly or by necessary implications mandate the exemption from appearance at particular stages.

For example, under sec 273, the evidences may be recorded in absence of accused( but in presence of his pleader) when the exemption from appearance is granted to him.

Similarly under section 353(6), if the appearance of accused is dispensed with then it is not mandatory for him to attend the court to hear the Judgement, which is otherwise mandatory for all the accused.

Beside this, section 205 Cr. P. C. allows the accused to appear by a pleader and such appearance involves the performance of all acts which devolve upon the accused in the course of the trial, such as answering the examination by the court under Section 342, or pleading or refusing to plead to the charge under Section 255.

Is presence of accused at time of application under 205 CrPC manadatory?

At first hearing when application under 205 crpc for exemption from appearance is to be decided, it is by and large mandatory for accused to remain present otherwise magistrate may reject the application out rightly. Exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused and once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C., then at a subsequent stage, such an application would not be maintainable.

Although there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance ,hence the remedy available to the accused is under Section 317 Cr.P.C. and not under Section 205 Cr.P.C., when he doesn't apply for exemption from appearance at first hearing.

The court in case of Arvind kejriwal vs State of UP( 2015) held that:

The question whether after taking cognizance and issuance of the process, may be summon or warrant, the exemption application under Section 205 or under Section 317 Cr.P.C. is maintainable without personal appearance and without furnishing bail bonds is, therefore, decided accordingly that in case of an accused is warrant trial, the provisions of Section 205 or Section 317 Cr.P.C. will not apply unless the accused has been granted bail and he has furnished bail bonds.

But this controversy was finally settled in case of Bashkar industry Limited ( Supra) and Apex court held that in certain circumstances the exemption from appearance of accused may be granted even when the accused doesn't appear at first hearing. Could held -

"Thus, in the appropriate cases, court may allow an accused to make even the first appearance through a counsel. Magistrate is empowered to record the pleas of accused when his counsel makes such pleas on behalf of accused."

Difference between section 205 and 317 of CrPC:
Though Sec 317 another section in CrPC , which also speaks about exemption from appearance of accused in trial. This section is more wide and broad in comparison to sec 205. The basic differences between sec 205 and 317 are enumerated as:

Section 205 of the Code of Criminal Procedure would be applicable when the proceedings have begun before the Magistrate and charges are yet to be framed. An order issued under Section 205 Cr.P.C., exempting personal attendance of an accused would continue to be operational even after charges have been framed and till the conclusion of the trial.But on the other hand, section 317 of Code of Criminal Procedure would generally be applicable during the trial stage, i.e., after the charges have been framed.

Application of section 205 crpc can be filed at the time of first appearance of the accused claiming the exemption from appearance. In appropriate cases, the Magistrate can allow an accused to even make the first appearance through a counsel. On the other hand, S. 317 empowers the Court to dispense with the personal attendance of the accused for proceeding with further steps in the case at stage of inquiries and trials.

Another major difference between the sections is that power under Section 205 could be exercised only by a Magistrate, whereas power under Section 317 could be used both by a Session Judge or a Magistrate.

Conclusion:
The power given to magistrate under sec 205 crpc is very wide but cannot be termed as unfettered. The power to dispense the appearance of accused should be used judiciously on the basis of material on record with reasons. Important thing is that , the application under sec 205 should be filed on first hearing in presence of accused.

If on first hearing accuse is present but application is not filed, then the remedy available is sec 317 crpc if accuse wants the exemption from appearance in subsequent hearings.
Moreover, this exemption can be revoked at anytime by the court in interest of Justice to secure the presence of accused.

Written By: Neha Katewa is an advocate and law manager in banking sector.