Whether the court can give personal exemption to accused if he has not given the bail?

Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code.{ Section 205 of the Code. Also see, Section 317 of the Code}  should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi and Another v. Rani Jethmalani (1979) 4 SCC 167. held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. See also, Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695. Section 205 states that the Magistrate, exercising his discretion, may dispense

with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law. See, Popular Muthiah v. State Represented by Inspector of Police (2006) 7 SCC 296 and earlier judgment of the Calcutta High Court in Rahim Sheikh (1923) 50 Cal 872, 875.{Para 47}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

SHARIF AHMED AND ANOTHER Vs STATE OF UTTAR PRADESH AND ANOTHER

Author: SANJIV KHANNA, J.

Dated: MAY 01, 2024.

Citation: 2024 INSC 363.

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Whether the order passed by the court in an application for grant of personal exemption to accused operates as res judicata or estoppel?

Equally unsustainable is the finding of the learned Magistrate that the petitioner was not entitled to apply for exemption from personal appearance again, since his earlier application with a similar prayer was rejected and the said order had become final. It is elementary that in the case of applications for exemption from personal attendance of the accused in the Court be it under Section 205(1) or Section 317 of the Code neither the rule of estoppel nor the principles of res judicata will apply. As noticed earlier, exemption from personal appearance can be granted at the discretion of the Court at any stage of an enquiry or trial. Therefore, the application filed by the petitioner could not have been rejected on the ground that a similar application filed by him was dismissed earlier.

IN THE HIGH COURT OF KERALA

Crl. M.C. No. 2493 of 2004

Decided On: 26.04.2005

 Shaji  Vs. State of Kerala

Hon'ble Judges/Coram:

A.K. Basheer, J.

Citations: 2005 (3) KLT 303

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Supreme Court guidelines for grant of personal exemption to accused from attending court in criminal proceeding

 The position, therefore, boils down to this: 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. However, the Magistrate who grants such benefit to the Accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an Accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1901 of 2019 

Decided On: 16.12.2019

 Puneet Dalmia Vs.  Central Bureau of Investigation, Hyderabad

Hon'ble Judges/Coram:

Ashok Bhushan and M.R. Shah, JJ.

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Bom HC: Magistrate can make order U/ S. 143-A of NI Act even when plea of not guilty recorded by Advocate and not by accused himself

 It is the case of the petitioner that, summons was issued to the accused returnable on 11.12.2018 The summons was served upon the accused on or about 01.11.2018 The petitioner, owing to unavailability of a confirmed travel ticket was unable to travel from Gurgaon to Mumbai and attend the Trial Court on 11.12.2018 but instructed an advocate to attend the proceedings and take appropriate steps in the interest of the petitioner. The advocate of the petitioner appeared before the Trial Court on 11.12.2018 and presented an application for personal exemption of the petitioner. The learned Magistrate passed a conditional order thereby allowing the exemption application on a condition that the Advocate for the accused shall record plea on behalf of the accused and if the advocate is pleading not guilty then the accused shall secure his presence for bail and deposit 20% of the cheque amount as interim compensation within 60 days from the date of the order. It is further stated that, the impugned order dated 11.12.2018 is passed by the learned Magistrate in exercise of his powers under Section 143A of the said Act, inserted by the Negotiable Instruments (Amendment) Act, 2018. The section 143A of the said Act empowers the Magistrate to order the accused to deposit 20% of the cheque amount as interim compensation in a summons case when the accused pleads not guilty to the accusations made in the complaint. It is pertinent to note that the Section 143A of the said Act, does not contemplate recording plea of accused through his pleader. The provision of section 143A of the said Act, also does not allow the learned Magistrate to order deposit of interim compensation as a conditional order. More particularly, such order under Section 143A of the said Act, cannot be passed on an application preferred on behalf of the accused seeking exemption from personal appearance before the Court. Hence the present writ petition.

 Therefore, keeping in view the mandate of Section 143 of the said Act and also judgment of Hon'ble Supreme Court in the case of Indian Bank Association(supra), the learned Metropolitan Magistrate was right in passing the impugned order. Prima facie it appears that the petitioner is trying to delay the proceedings pending before the learned Metropolitan Magistrate. In that view of the matter no case is made out to cause interference in the impugned order. Hence, petition stands rejected.

In the High Court of Bombay

(Before S.S Shinde, J.)

Sidharth Chauhan  v.  Aditya Birla Real Estate Fund 

Criminal Writ Petition No. 762 of 2019

Decided on July 19, 2019, 

Citation: 2019 SCC OnLine Bom 1297,2020(1) MHLJ 277

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Whether trial court should grant personal exemption to accused in cheque dishonour case as a matter of course?

In Basavaraj R. Patil and Ors. (supra) while advocating a pragmatic and humanistic approach in less serious offences, Thomas, J. speaking for the majority in a Bench of three learned Judges, explained the scope of Clause (b) to Section 313(1) of the Code as follows:

The word "shall" in Clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved?

If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters:

(a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers.

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

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

15. It is manifest from the afore-extracted passage that dispensation with the personal examination of an accused in terms of the said provision is within the trial court's discretion, to be exercised keeping in view certain parameters, enumerated therein and not as a matter of course.

16. It is true that in direction (vii) supra, the learned Judge has clarified that the stipulations in the preceding paragraphs are not intended to fetter the discretion of the court to follow any different procedure, if there be compelling need but the requirement of recording 'specific reasons' by the Magistrate for deviating from the directions given in the order, as stipulated in the same paragraph, in our view, is by itself tantamount to putting fetters on the jurisdiction of the Magistrate. This is not warranted in law.

17. Thus, in the instant case, we have no hesitation in holding that the High Court exceeded its jurisdiction under Section 482 of the Code and/or Article 227 of the Constitution by laying down the afore-extracted general directions, which are inconsistent with the clear language of Sections 205 and 313 of the Code, as noted above. We feel that in light of the afore-noted guidelines laid down by this Court, further directions on the same issue by the High Court were wholly uncalled for.

IN THE SUPREME COURT OF INDIA

Crl. A. No. 1854 of 2008

Decided On: 14.01.2011

T.G N. Kumar Vs. State of Kerala and Ors.

Hon'ble Judges/Coram: 

D.K. Jain, A.K. Ganguly and H.L. Dattu, JJ.

Citation:(2011) 2 SCC 772

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Whether accused can claim personal exemption as per S 205 of CRPC as of right?

 It is an admitted fact that the petitioner is the 4th accused in C.C. No. 1731 of 2014 on the file of the Judicial First Class Magistrate's Court-V, Kozhikode. It is also an admitted fact that he was on bail and thereafter, he filed Annexure-VII application for personal exemption under Section 205 of the Code. In fact in the application, it was mentioned that he met with accident and suffered fracture and he is undergoing treatment for the same and internal fixation was done. He was also advised that he will have to undergo another operation for removal of the internal fixation and he will have to be under bed rest for long time. So he is not able to attend on all days. He may be permitted to answer the questions under Section 313 of the Code and also other statements, if any required, through his counsel Sri K. Pradeepan, Advocate, Kozhikode. So he prayed for allowing the application. He had also produced Annexure-VI Medical Certificate dated 14-12-2014 along with this application, in which it was mentioned that he suffered fracture and suffering from post-operative stiffness, and he was advised rest for 90 days from 14-12-2014. The application was pending from 2015 onwards. It appears that thereafter, he met with another accident and he had produced Annexure-XI to XV to prove that fact before this Court. However, these documents were not produced by the petitioner before the court below. He had produced only Annexure-VI along with Annexure-VII petition and under that circumstances, it cannot be said that the court below had committed any illegality in dismissing the application by passing Annexure-VIII order.

It is true that if the court is satisfied that the presence of the petitioner is not required on all occasions, when the presence of the petitioner can be obtained without difficulty, whenever his presence is required, the court can permit the petitioner to appear through his counsel restricting the days of his presence in the court, whenever his presence is required, and on which days it cannot be dispensed with. Further, granting personal exemption under Section 205 of the Code, is not a relief claimed as of right as well. It is a discretion to be exercised by the court, considering the circumstances mentioned in the petition. So under the circumstances, on the basis of the allegations made and the documents produced before the court below, the court below was not satisfied for granting exemption and that was the reason why the application has been dismissed. This Court does not find any reason to interfere with Annexure-VHI order.

IN THE HIGH COURT OF KERALA

Cri. M.C. No. 1462 of 2016

Decided On: 10.05.2016

 M.P. Shahul Hameed

Vs.

 State of Kerala and Ors.

Hon'ble Judges/Coram:

K. Ramakrishnan, J.

Citation: 2017 CRLJ 776 Kerala

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Whether Personal exemption U/S 205 of CRPC can be granted to accused in petty offences?

It does speak about the procedure to be followed by the accused
in case he receives summons in petty offences. If such summon issued
under Section 206 is received, the accused may even without appearing
plead guilty in writing and may transmit the amount of fine or if the
accused desires to appear by pleader, he may do so by authorizing his
pleader to plead guilty to the charge on his behalf and to pay the fine
through such pleader.
Under the scheme of the Code these two provisions of Section 253
and 206 can be resorted to in cases of trial of summons cases whereas
no such provision is there under the code with respect to trial of warrant
or sessions cases as a result of which obviously the accused can not be
allowed to plead guilty through his pleader. Therefore, in my view, the
case in which provisions of Section 253 of the Code of Criminal
Procedure can not be resorted to would be out of the purview of Section
205 of the Code of Criminal Procedure. Under the circumstances, what has emerged is that the provision
of Section 205 of the Code of Criminal Procedure is not invokable in all
cases, rather this is to be invoked in petty cases and the cases which
are not serious in nature. Here the offences alleged against the
petitioner can easily be said to be serious in nature.
In such situation, the provision of Section 205 of the Code of
Criminal Procedure is not invokable. The submission which was
advanced regarding role being played by a person in the commission of
offence has nothing to do with the invocation of the provision as
contained in Section 205 of the Code of Criminal Procedure.
In the High Court of Jharkhand at Ranchi
Cr.Rev.No.1194 of 2015
Smt.Namita Das 
V E R S U S
State of Jharkhand through C.B.I
CORAM: HON’BLE MR. JUSTICE R.R.PRASAD

Dated;27.11.15. 
Citation; 2016 CRLJ1569

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Whether personal exemption can be granted to accused in serious offence?

It does speak about the procedure to be followed by the accused
in case he receives summons in petty offences. If such summon issued
under Section 206 is received, the accused may even without appearing
plead guilty in writing and may transmit the amount of fine or if the
accused desires to appear by pleader, he may do so by authorizing his
pleader to plead guilty to the charge on his behalf and to pay the fine
through such pleader.
Under the scheme of the Code these two provisions of Section 253
and 206 can be resorted to in cases of trial of summons cases whereas
no such provision is there under the code with respect to trial of warrant
or sessions cases as a result of which obviously the accused can not be
allowed to plead guilty through his pleader. Therefore, in my view, the
case in which provisions of Section 253 of the Code of Criminal
Procedure can not be resorted to would be out of the purview of Section
205 of the Code of Criminal Procedure. Under the circumstances, what has emerged is that the provision
of Section 205 of the Code of Criminal Procedure is not invokable in all
cases, rather this is to be invoked in petty cases and the cases which
are not serious in nature. Here the offences alleged against the
petitioner can easily be said to be serious in nature.
In such situation, the provision of Section 205 of the Code of
Criminal Procedure is not invokable. 
In the High Court of Jharkhand at Ranchi
Cr.Rev.No.1194 of 2015
Smt.Namita Das V  State of Jharkhand through C.B.I…

CORAM: HON’BLE MR. JUSTICE R.R.PRASAD

Dated; 27.11.15. 
Citation;2016 CRLJ 1569

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