File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

The Concept Of Permanent Exemption Under Negotiable Instruments Act, 1881

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 [1]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.

The magistrate is empowered under Sub-Section (2) of 205 Crpc[2]and 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, if necessary.

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 [3](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 [4]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 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.
  • 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.

Appeal Provisions

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 - SC)[5]

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[6].

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 case.

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 the counsel.

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 proceedings.

TGN Kumar vs. State of Kerala and Ors. (14.01.2011) - SC (guidelines)[7]

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:
  1. 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.
  2. 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 appointed
  3. 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.
  4. 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:
     
  5. 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 court.
     
  6. 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 is issued.
     
  7. 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.
     
  8. 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[8]
     
  9. 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 turpitude

Kajal Sengupta vs. Ahlcon Ready Mix Concrete, Division of Ahluwalia Contract (India) Limited (27.04.2012 - DELHC)[9]

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 him?

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) [10]

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 [11]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 work.

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.

They 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 anticipatory bail.

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 - SC)[12]

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 companies.

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:
  • 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.

Analysis and Conclusion
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 party.

End-Notes:
  1. The Code of Criminal Procedure, Act No. 2 of 1974, 317 (1973
  2. The Code of Criminal Procedure, Act No. 2 of 1974, 205 (1973)
  3. The Negotiable Instruments Act, Act No. 26 of 1881, 138 (1881).
  4. The Code of Criminal Procedure, Act No. 2 of 1974, 313 (1973).
  5. Bhaskar Industries Ltd. vs. Bhiwani Denim and Apparels Ltd., AIR 2001 SC 3625.
  6. The Negotiable Instruments Act, Act No. 26 of 1881, 138 (1881).
  7. TGN Kumar vs. State of Kerala ,2011(1)Crimes339(SC).
  8. The Code of Criminal Procedure, Act No. 2 of 1974, 482 (1973).
  9. KajalSengupta vs. Ahlcon Ready Mix Concrete,2012(3)Crimes223(Del.).
  10. RameshwarYadav and Ors.vs. The State of Bihar, AIR 2018 SC 1435.
  11. The Indian Penal Code, Act No. 45 of 1860, 498A (1860).
  12. PuneetDalmia vs. Central Bureau of Investigation, Hyderabad ,AIR2020SC214.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

Constitution of India-Freedom of speech ...

Titile

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Dec...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly