Is an Accused required to appear before the Court on every date?

On 27th August 2001, a Division Bench of the Hon’ble Supreme Court in Criminal Appeal No. 858 of 2001 titled Bhaskar Industries Ltd. V. Bhiwani Denim & Apparels Ltd. reported as (2001) 7 SCC 401 has decided a substantial question of law relating to exemption from personal appearance/attendance in criminal cases, wherein, an accused in an offence punishable under Section 138 of the Negotiable Instrument Act of 1881 submitted an application for exemption from personal appearance mainly on two grounds: 

1. The offence under Section 138 of the NI Act is not a serious offence; 

2. The insistence on the physical presence of the accused in the case would cause substantial hardships and sufferings to him as he is a resident of Haryana and the case is pending in Bhopal.

The application was allowed by the trial court. However, the said order granting exemption from personal appearance was set aside by the Sessions Judge and the order setting aside the order passed by the trial court was challenged before the High Court, however, High Court declined to interfere with the order of the Sessions Court. Hence, an appeal was preferred before the Supreme Court.

Issue  

Whether the personal attendance of an accused may be dispensed with? If yes, in what circumstances? 

Relevant Provisions

Section 317 of the Cr.P.C.

Under Section 317, personal attendance of an accused may be dispensed with on two grounds:

1. When the accused persistently disturbs the proceedings; or

2. If a court is satisfied that in the interest of justice, the personal attendance of an accused before it is not necessary. 

 

Section 273 of the Cr.P.C.

Section 273 provides that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader. 

Section 205 of the Cr.P.C.

Section 205 provides that 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.

The Hon’ble Supreme Court in this case, while setting aside the order passed by the Sessions Judge, observed and held that “The position, therefore, bogs 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 to 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.”

The Court further observed and directed that one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including the examination of the witnesses.

What will happen if counsel engaged by the accused does not appear?

Hon’ble Supreme Court observed and held that the legislature has taken care of such eventualities. Section 205(2) says that the magistrate can, in his discretion, direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.

Whether the principle for grant of exemption as observed in Bhaskar Industries Ltd.(Supra) is applicable to offences of serious nature?

The Hon’ble Supreme Court in Criminal Appeal No. 1901 of 2019 titled Puneet Dalmia  Vs. Central Bureau of Investigation, Hyderabad observed and held that “It is true that in the aforesaid two cases before this Court, the offences alleged were less serious offences than alleged in the present case. However, the principles for grant of exemption as observed by this Court in the case of  Bhaskar Industries Ltd. (supra) can be made applicable to the facts of the case on hand also and the appellant can be granted the exemption on certain conditions and on filing an undertaking by the appellant, by which the interest of justice can be protected and grant of exemption may not ultimately affect the conclusion of the trial at the earliest”.