The Code of Criminal Procedure provides for a provision in order to prevent the
accused from undue hardship and cost in attending the trial, through which the
accused can be permanently exempted from personal appearance in a summons case.
The Magistrate in his judicial discretion may, in a summons case, permanently
exempt the accused from his personal appearance at the trial and to be duly
represented by his pleader.
This power is provided to the Magistrate in Section
205 and 317 whereby it is not the right of the accused but it depends on the
discretion of the Magistrate. However, the exemption granted is not absolute in
nature and is subject to certain conditions, which may be imposed by the
Magistrate to ensure that the prosecution proceedings are not prejudiced.
magistrate is empowered under Sub-Section (2) of 205 Crpcand Sub- Section (1)
of 317 Crpc to call for the personal attendance of the accused, at any stage of
the proceeding, if necessary. In this article, the author shall trace the
concept of Permanent exemption from personal appearance in the court by
analyzing various landmark judgments. This article shall bring more clarity on
this concept as it nicely contributes and complements the work done by the other
authors and various jurists by compiling and analyzing their views.
Speedy trials are crucial to provide justice and this could happen when the
trials are not unnecessarily delayed or hindered. The purpose of attendance of
the accused at the trial is not merely a formality or compulsion, rather it is
followed so that the trial can be conducted in an expedient manner and is not
hampered or prejudiced in the absence of the accused. But in cases where coming
to court every time causes great hardship and inconvenience to the party then he
shall be granted exemption on relevant undertaking and conditions.
This is from
where the concept emerged of permanent exemption from appearance in the trial as
people might get stuck in their prior commitments and the longer distances of
going to court adds upon their hardships. This is not the right way to deliver
justice by making the party suffer which can even cost them more than the actual
compensation desired. However, such exemption shall not delay or hamper the
trial and the Magistrate is deemed to have reserved his right to call the
accused person to appear in person at the trial, at any stage of the proceeding,
This proposition in earlier times was only applicable to summons case as they
are considered as less serious offences like to Section 138, Negotiable Act
(Cheque bouncing cases) but in recent times, the cases of a serious nature
i.e. Warrant Cases and C.B.I Cases are also witnessing its application. The mere
fact that case on hand is a warrant case need not prevent the learned Magistrate
from granting permanent exemption if otherwise petitioner is entitled to the
same. Thereby, it is within the power of the Magistrate to grant exemption in
warrant cases also if the circumstances justified such a course.
Section 205 read with Section 313 of the Criminal Procedure Code provides
exemption to the accused his personal examination as well. It is important for a
Magistrate to fully analyze the facts and the circumstances of the case before
granting such exemption as it should not be allowed in cases where the accused
has been absconding and has been Proclaimed Offender by the Magistrate. The
nature of the crime alleged as well as the conduct of the Accused are of
paramount importance while considering applications for such exemptions.
Procedure for Grant of Permanent Exemption
- An application for exemption from trial along with an affidavit in
support will contain the following undertakings: 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
- 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.
- 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, and
- That a counsel on his behalf would be present in court and that he has
no objection in taking evidence in his absence.
For being aggrieved of the Magistrate's Court decision for not granting the
exemption, the applicant has the option of filing a Revision Petition in the
Sessions Court and if rejected , preferring an appeal in the concerned High
Court. Even if it is still rejected the Applicant can take recourse by filing a
Special Leave Petition (Criminal) in the Supreme Court A Special Leave Petition
is that by which any order, decree, of a lower Court/Tribunal in India can be
challenged in the Supreme Court of India(The final discretion however rests with
the Supreme Court itself).
Relevant Case Laws
Bhaskar Industries Ltd. vs. Bhiwani Denim and Apparels Ltd. and Ors. (27.08.2001
For understanding the facts in a narrow compass, the Appellant Company filed a
criminal complaint before the court of Judicial Magistrate of First Class,
Bhopal (M.P.) against 15 accused for the offence under Section 138 of the
Negotiable Instruments Act.
The Second accused in the present case filed for
the plea before the trial court for exempting him from personal appearance by
relying on 317 of Crpc and highlighted that first, the offence under Section
138 of the Negotiable Instruments Act is relatively not a serious offence as
which is also evident from the fact that the legislature made it only a summons
Second, that the accused is a resident of Haryana and physical presence of
the accused in the case would cause substantial hardships and sufferings to him.
To undertake a long journey to reach Bhopal for making his physical presence in
the court involves, apart from great hardships, much expenses also, contended
Thereby, by making the following observations the Supreme Court set aside the
order of the Session judge and also opined that if any such application is filed
the magistrate shall pass orders thereon before proceeding further in the light
of the observations made in this judgment.
The trial of summon cases by the Magistrate in Chapter XX of the Code commence
with Section 251 which prescribes the court to ask the accused whether he pleads
guilty when the accused appears or is brought before the magistrate. The
appearance in this case can either be by personal attendance of the accused or
through his advocate which is mentioned u/s 205(1) of the code.
It allows the
Magistrate to dispense the accused with the personal attendance of the accused
and permit him to appear by his pleader, if he sees reason so to do. Therefore,
vide this section; it is possible to make the first appearance in the court
though a counsel. Further, for seeking permanent exemption from personal
appearance for proceeding with the further steps in the case, Section 317
empowers the court to dispense with the personal attendance of the accused.
This exemption comes with the exception rule whereby 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 examination of the witnesses.
In case the counsel representing the accused does not appear or does not
co-operate in proceeding with the case then Crpc provides solutions for these
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.
Further, Section 317(1) provides discretion on the magistrate to direct the
personal attendance of the accused at any subsequent stage of the proceedings.
The exemption is provided only in the interests of justice. The order of the
Magistrate should be such which does not result in unnecessary harassment to the
accused and at the same time does not cause any prejudice to the complainant.
The Court must ensure that the exemption from personal appearance granted to an
accused is not abused to delay the trial.
Criminal courts should primarily focus on the administration of criminal
justice. As it is a normal rule that the evidence shall be taken in the presence
of the accused. However, in the cases where permanent exemption is already being
granted, then even in the absence of the accused such evidence can be taken but
then it shall be done in the presence of his counsel in the court. For
progressing with the proceedings of the case, it is not important to have the
presence of the accused just for marking his attendance but to enable the court
to proceed with the trial.
The cases under Section 138 of the Negotiable Act, 1881 are technical in nature
and do not include moral turpitude. Moreover, Due to the increase of inter-State
transactions through the facilities of the banks it is not uncommon that when
prosecutions are instituted in one State the accused might belong to a different
State, sometimes a far distant State. Therefore, the issue of the distance comes
out as a valid ground for seeking exemption under crpc.
When a magistrate feels
that insistence of personal attendance of the accused in a summons case, in a
particular situation, would inflict enormous hardship and cost to a particular
accused, it is open to the magistrate to consider how he can relieve such an
accused of the great hardships, without causing prejudice to the prosecution
TGN Kumar vs. State of Kerala and Ors. (14.01.2011) - SC (guidelines)
A special leave petition was filed in the Supreme Court in the case involving an
offence under Section 138 of the Negotiable Instruments Act, 1881, as also in
all other cases involving offences which are technical in nature and do not
involve any moral turpitude for quashing the order dated 4th September, 2008
passed by a learned Single Judge of the High Court of Kerala. In view of the
controversy at hand, it is unnecessary to state the facts giving rise to this
appeal in detail, except to note that the present case arises out of a complaint
filed under Section 138 of the N.I. Act.
This judgment is significant and known
for the rules of guidance:
which the court issued with a direction that these
can and must certainly be followed by the court which are called upon to deal
with trials under Section 138 of the N.I. Act:
- The prosecution under Sec 138 of the Negotiable Instruments Act where a
criminal allegedly guilty of only a technical offence with no moral
turpitude shall be reckoned as sufficient reason by all criminal courts to
invoke the discretion under section 205 Cr.P.C and 317 crpc.
- The accused shall not be insisted for his presence in the court for the
plea of guilty or of innocence as it could be recorded through counsel duly
- The evidence related to the trial can be recorded only in the presence
of duly appointed counsel when the accused is exempted from personal
appearance as enabled by sec 273 crpc.
- For the purpose of the examination of the accused u/s 313 in cases where
permanent exemption is already granted, sec 313(b) can be dispensed with
under the proviso to section 313(1) and it obliges the court in such
situation to accept and consider the written statement made by the accused.
he 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:
- It is not necessary or essential to insist on the personal presence of
the accused even if to receive the judgment whether the sentence is one of
fine or the judgment is one of acquittal. After the pronouncement of
judgment, specific date is allotted to the accused to appear in person to
undergo the sentence. By that date, it shall, of course, be open to the
accused to get the order of suspension of the superior court produced before
- Where warrants are to be issued in a 138 prosecution, ordinarily a bailable warrant under section 88 Cr.P.C must be issued at the first instance
before a non-bailable warrant without any stipulations under section 87 Cr.P.C
- The abovementioned exemptions can only be reckoned as applicable in the
ordinary circumstances and are not intended to fetter the discretions of the
court to follow any different procedure if there be compelling need. In such
event, the orders/directions of the Magistrate shall clearly show the
specific reasons as to why deviations are resorted to.
- Modern judicial personality enjoins on the courts to become user
friendly and ensure their commitment to human rights. Thereby, in case any
person is aggrieved that the above procedure has not been followed
unjustifiably shall always have the option of approaching this Court for
directions under Section 482 Cr.P.C
- Although these guidelines are specific to prosecutions under Section 138
of the Negotiable Instruments Act, still they must be followed in all other
cases also where the offence alleged is technical and involves no moral
Kajal Sengupta vs. Ahlcon Ready Mix Concrete, Division of Ahluwalia Contract
(India) Limited (27.04.2012 - DELHC)
In the landmark case of KajalSengupta vs. M/S Ahlcon Ready mix concrete, the
High Court of Delhi pronounced a decision solving a short question of law i.e.,
whether the grant of permanent personal exemption by the Magistrate to the
accused, in a bailable offence, be understood and construed to having dispensed
with the requirement of the accused to obtain bail from the Court and whether
the exemption from appearance granted by the Magistrate could not be revoked by
In this case, a complaint was filed by the respondent/complainant against the
petitioner under Section 138,Negotiable Instruments Act and summons were issued
to the petitioner by the learned M.M. vide his order dated 29.8.2007. The
complainant company preferred a revision to this Court against the order of the
Ld. MM granting personal exemption to the petitioner, which was dismissed by
this Court vide order dated 07.01.2010.
Thereafter, the Ld. MM vide order dated
11.02.2011 directed the petitioner herein to personally appear before him for
furnishing the bail bond and disclosing his defense for revocation of personal
exemption of the petitioner. Aggrieved by the order, the petitioner approached
the High Court seeking quashing of MM's order and to continue to be represented
through his counsel, at the trial.
He contended that the requirement of bail
do not form a part of the
proceeding as it is done to ensure the presence of the accused in Court during
trial, which in the present case, has already been dispensed by the Magistrate
vide order dated 19.05.2009. The purpose of securing bail by the accused person
from the concerned Court is mutually exclusive to the purpose of grant of
personal exemption from appearance.
Furnishing of bail bonds and surety a part
of court proceeding, by the accused which ensures that the accused shall abide
by the conditions of bail and any subsequent order of the Court requiring his
attendance in Court. Therefore, the processes of bail and personal exemption
from appearance, broadly operate in different spheres of the trial and are
independent of each other thereby cannot usurp the requirement of obtaining bail
by the petitioner.
Rameshwar Yadav and Ors. vs. The State of Bihar and Ors. (16.03.2018 - SC) 
In March 2018, the Supreme Court of India created a precedent and reasoning that
a long distance between places of trial from residence of accused persons is a
valid and reasonable ground for allowing exemption from personal appearance of
accused in a criminal trial. The case deals with the offence of IPC 498A and
Dowry Prohibition act, however the judgment does not seem to be limited in its
applicability, so it can be used for cases filed under other IPC sections, too.
There is no necessity to learn all the facts of the case but an overview will
Non-bailable warrants were issued by the Magistrate on 23.12.2012.
All the accused that is appellants as well as Arnesh Kumar filed an application
dated 17.01.2013 praying for recall of non bailable warrant and
dispensing with their physical appearance in the case. The ground
for filing such application for exemption was that issue of long distance.
contended that appellant No.1, father of Arnesh Kumar is a retired Army Official
residing in with appellant No.2 and other appellants were also residents of Pune,
Maharashtra and they have to come from a long distance of 1,750 km between their
residence in Pune, and place of trial in Patna, Bihar.The proceedings were going
on in Patna, Bihar and for each time, they all had to travel the long distance
from pune to patna. Except Arnesh Kumar, all accused were granted
The Sub-Divisional Magistrate by order dated 13.08.2013
rejected the application filed by the accused under Section 205 Cr.P.C while
giving the following reasons:
- Applicants appear to be hale and hearty and are not suffering from any
type of disease which may be impediment in appearing before the court.
- The nature of offence in the present case requires the presence of both
the parties on each and every date so that good sense prevails upon them.
- Their presence is also crucial for the purpose of conciliation since the
very enactment of
Section 498A of IPC and DowryProhibition Act primarily meant
forrestoration of conjugal harmony.
Aggrieved by the rejection of the application, the accused filed an application
under Section 482 Cr.P.C which was further dismissed by the Patna High Court
stating a new ground that a prayer for exemption from personal appearance
under Section 205 Cr.P.C. can only be made at the stage of first appearance
of the accused.
The Court stated that once the accused appears before the court
in person without making any application for exemption from the personal
appearance under Section 205 Cr.P.C., at a subsequent stage, such an application
would not be maintainable.
The high court reasoned that the accused had already
appeared after obtaining the order of pre-arrest bail and furnishing bond and
sureties to the satisfaction of the court. The pre-arrest bail was granted to
the accused by the District and Sessions Judge by order dated 21.06.2013
and thereafter the accused appeared before the court. Challenging the orders
of both the courts, an appeal was filed in the Supreme Court.
The Supreme Court noticed that the observation of the High Court while
dismissing the application is factually incorrect as the application was filed
by the accused under Section 205 Cr.P.C. on 17.01.2013 and thus it was filed
prior to the appearance in the court. Moreover, the remedy available to the
accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. and
which empowers the Magistrate, at any stage of inquiry or trial for reasons to
be recorded to exempt attendance of the accused.
Averting to the reasons given
by the Magistrate for rejecting the application, the Supreme Court stated that
Application was not filed by the accused on the ground that they suffer from any
physical illness thereby the first reason stands incorrect. The reason which was
regarding conciliation which requires the appearance of the accused desirable,
for this the Supreme Court stated that the present appellants, thus, were not
pressing application under Section 482 Cr.P.C. for Arnesh Kumar, the
husband who could have very well participated in the proceedings.
In the view of Supreme Court, sufficient grounds were made out for granting
exemption from personal appearance of the appellants in the
trial and the Magistrate committed error in not adverting to the grounds of the
application. Thereby, the personal appearance of the Appellants is exempted.
This, however, shall not preclude the Magistrate to pass appropriate orders
under Section 205(2) Cr.P.C. if and when personal appearance of the
appellants is required.
Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad (16.12.2019 -
A special Leave petition was filed in the Supreme Court for quashing the order
passed by the High Court for the State of Telangana and the State
of Andhra Pradesh at Hyderabad in Criminal Petition No. 3880 of 2016, by
which the High Court has dismissed the said application and has rejected the
prayer of the appellant for dispensation with his personal
appearance. The accused was charged with the offences punishable under Sections
120-B read with Sections 420, 409 IPC and Sections 9, 12, 13(2) read with
13(1)(c) and (s) 12 of the Prevention of Corruption Act.
The accused filed an application for granting him exemption from appearance in
the court. The grounds on which the accused requested for exemption was that he,
being the director of several companies and is pre-occupied with the management
and attending day-to-day affairs on account of business exigencies of the
Moreover, he is required to travel from Delhi to Hyderabad spending
not less than two days which adds to the financial cost and cause him undue
hardship. Principal Special Judge for CBI Cases, Hyderabad dismissed the said
application stating that the reasons are not germane and also as the the
appellant is facing very serious charges/offences; thereby the reasons provided
are not suitable. While, the applicant appealed in the High Court, they also
dismissed the petition.
Thereby, in view of the reasons stated and facts considered, the Supreme Court
quashed the impugned order of the High Court and consequently allowed the
application filed by the accused on the following conditions:
Analysis and Conclusion
- That the applicant shall give an undertaking to the learned Trial Court
that he would not dispute his identity in the case and that Sri Bharadwaj Reddy
advocate who is appointed to duly represent the appellant, would appear before
the learned Trial Court on his behalf on each and every date of hearing and that
he shall not object recording of the evidence in his absence and that no
adjournment shall be asked for.
- That the applicant shall appear before the learned Trial Court for the
purpose of framing of the charges and also on other hearing dates whenever
the learned Trial Curt insists for his appearance
- In case there is any failure on the part of the advocate either to
appear before the learned Trial Court on each adjournment and/or any
adjournment /or if the learned Trial Court is of the opinion that the
appellant and/or his advocate is trying to delay the trial, in that case, it
would be open for the learned Trial Court to exercise its powers under
Section 205 (2) Cr.P.C. and
direct the appearance of the appellant on each and every date of adjournment.
In view of the above case laws and the reasons stated, the analysis which could
be drawn out of it is that the granting of exemption under 205 crpc or 317 crpc
depends solely on the discretion of the Magistrate. The Supreme Court of India
vide various judgments have also issued rules of guidance which are required to
be followed by the Magistrate before passing any judgment for the application.
It is beyond doubt to acknowledge that the cases which are less serious in
nature or more of technical in nature not involving moral turpitude like the
offence under Section 138 of NI are seen as witnessing easy and more grant of
exemption from personal appearance than the others. Moreover, the issue of long
distance is also considered as a valid ground for seeking exemption.
Besides this, medical problems and business commitments also play a substantial
role for getting qualified for exemption but again it depends on the nature of
the offence and the conduct of the Accused. Taking all the aspects and case laws
in a cumulative manner, the author is of the view that grating of personal
exemption is very common in offences under Negotiable Instruments Act or other
less serious offences, the accused or the complainant can request for it by
providing reasonable grounds and an undertaking with certain conditions and thus
in the end, it is the Magistrate who has the sole power of granting that
application. There are no straight written grounds which are mandatory and
always applicable so the facts and circumstances of the case alongwith the good
set of precedents works to create a better case for providing exemption to a
- The Code of Criminal Procedure, Act No. 2 of 1974, § 317 (1973
- The Code of Criminal Procedure, Act No. 2 of 1974, § 205 (1973)
- The Negotiable Instruments Act, Act No. 26 of 1881, § 138 (1881).
- The Code of Criminal Procedure, Act No. 2 of 1974, § 313 (1973).
- Bhaskar Industries Ltd. vs. Bhiwani Denim and Apparels Ltd., AIR 2001 SC
- The Negotiable Instruments Act, Act No. 26 of 1881, § 138 (1881).
- TGN Kumar vs. State of Kerala ,2011(1)Crimes339(SC).
- The Code of Criminal Procedure, Act No. 2 of 1974, § 482 (1973).
- KajalSengupta vs. Ahlcon Ready Mix Concrete,2012(3)Crimes223(Del.).
- RameshwarYadav and Ors.vs. The State of Bihar, AIR 2018 SC 1435.
- The Indian Penal Code, Act No. 45 of 1860, § 498A (1860).
- PuneetDalmia vs. Central Bureau of Investigation, Hyderabad