Can Accused In Criminal Case Seek Exemption From Personal Appearance Even Before Appearing In Person In Court or Furnishing Bail Bonds?

In criminal cases, pursuant to the issuance of the summons to the accused by the court, the accused appears before the Court and seeks bail in non-bailable offences or directly furnishes bail bonds in bailable offences up to the satisfaction of the Court. After securing bail and furnishing of bail bonds, an accused is required to appear before the court on each date of hearing.  If an accused is not appearing before the Court on any date of hearing, an application seeking exemption from personal appearance is required to be filed on behalf of the accused stating the grounds for not appearing before the Court.

On the application of the accused seeking permanent exemption from personal appearance till further orders, the Court has the discretion to grant exemption to the accused from personally appearing on each date of hearing. In such cases, the accused is exempted from appearing in person before the Court on every date of hearing and the presence of the counsel of the accused is considered enough. Till the specific order for the presence of the accused is not passed, the accused is exempted from personal appearance.

The question herein is whether can accused seek permanent exemption from personal appearance till further orders of personal appearance by the court even on the first date of hearing through his counsel without appearing in person in the court and without furnishing bail bonds/ securing bail.

Section 317 of Code of Criminal Procedure, 1973 (“Cr.P.C.”)/ Section 355 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNNS”) deals with the power of the Court to proceed with inquiry or trial in the absence of accused.

The relevant extract of the Section is reproduced herein below:

317. Provision for inquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be re corded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up for tried separately.”

In Section 355 of the BNNS, an explanation, i.e., personal attendance of the accused includes attendance through audio video electronic means, has been inserted which is not present in Cr.P.C.

As per Section 317 of the Cr.P.C./ Section 355 of the BNNS, the Court in the interest of justice can proceed with the inquiry or trial in the absence of accused. The said provision does not impose any restriction on the Court from exercising such discretion only after any particular stage.

In the case of Bhaskar Industries Ltd. vs. Bhiwani Denim and Apparels Ltd. and Ors., MANU/SC/0489/2001, the Hon’ble Supreme Court while dealing with the question of granting personal exemption to the accused held that the magistrate can dispense with the personal appearance of an accused even throughout the matter.

The relevant extract from the judgment is as under:

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.

In the case of Larsen and Toubro Ltd., Mumbai and Ors. vs. Anand Bangad and Ors., MANU/MP/1056/2002, the Hon’ble High Court of Madhya Pradesh set aside the Session Court’s order wherein the Sessions Court upheld the Trial Court’s order granting exemption from personal appearance to the accused persons and allowed them to appear through their pleader/counsel but directed the accused persons to appear before the Trial Court for executing bail bonds and personal bonds.

While setting aside the order of the Sessions Court, the Hon’ble High Court relied upon the judgment of the Hon’ble Supreme Court in the case of Bhaskar (supra) wherein the Apex Court held that if the magistrate finds that insistence of personal appearance of the accused persons would itself inflict enormous suffering or tribulation on them and the comparative advantage would be less, the Magistrate can dispense with the personal appearance. The Hon’ble High Court also considered that the accused persons are based in Mumbai and for appearing in person before the Court they have to travel to Ujjain at their own costs which would lead to loss of work and money and such loss is not only of the citizen but also of the Country.

In the case of V.S. Reddy vs. Excel Glasses Ltd. and Ors., MANU/KE/1367/2010, the Hon’ble Kerala High Court set aside the order passed by the Magistrate dismissing the application of the accused for personal exemption on the pretext that the accused didn’t appear before the Court and the personal attendance of the Petitioner to obtain the bail is required.

While setting aside the order of the Magistrate, the Hon’ble High Court perused section 317 of the Cr.P.C. and held as under:

“Having gone through the above provisions, I fail to find that the accused can apply for exemption from personal attendance only after executing a bail bond. Even before executing a bail bond, in the event there are sufficient reasons, the accused is entitled to apply for exemption from personal appearance.”

Further, the Hon’ble High Court held that in appropriate cases, the Magistrate can allow an accused to make even the first appearance through counsel. The High Court also observed that in the case in hand the Magistrate ought to have considered the petition filed by the Petitioner on merits, irrespective of the fact that he didn’t execute the bail bond.

In view of the above cases, it is apparent that the Court has the power to grant permanent exemption from personal appearance to the accused even when an accused has not appeared in person before the Court or furnished bail bonds/ secured bail. However, while exercising such discretion, the Court must satisfy itself that there are sufficient grounds in the interest of justice for allowing such request of the accused and record such grounds.