(2018)1 SCeJ 585


16th March, 2018


(i) Cr.P.C.  Section 205 – Exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused and once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C. at a subsequent stage, such an application would not be maintainable - Application u/s 205 CrPC filed on 17.01.2013 before putting in first appearance in the court, after obtaining pre-arrest bail from Sessions court on 21.06.2013, but was decided after putting in appearance  - Application was filed by the accused under Section 205 Cr.P.C. prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining the pre-arrest bail -  The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed much before their appearance in the court.                     [Para 10]


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(ii) Cr.P.C.  Section 205 – In the application the grounds given was that, appellant No.1 father of husband is retired Army personnel and residing in Pune with his wife that is appellant No.2 -  Appellant Nos.3 and 4 were also residing at Pune -  Appellant No.3, was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune – Matrimonial dispute  - The husband was working at Hyderabad -  It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms.  –  Sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial -  The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded - Reason given by the Magistrate that,  all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court, is wholly out of place, as application was not filed by the accused on the ground that they suffer from any physical illness  - The second reason given by the magistrate that accused and complainant should be present before the court on each and every date expecting good sense prevail between them,  we fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption - Third ground regarding conciliation which requires the appearance of the accused desirable is not sustainable and it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband, whose pre-arrest bail was already rejected - The present appellants, were not pressing application under Section 482 Cr.P.C. for the husband who could have very well participated in the proceedings - Thus, the above ground was also not available for rejection of the application.                                                           [Para 13, 14]


(iii) Cr.P.C., Section 205(2)  - Magistrate under Section 205 sub-Section (2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides.                                                              [Para 14]


(iv) Cr.P.C., Section 205, 317  - There is one more reason due to which the High Court’s order cannot be sustained - The High Court in its order rejecting the application under section 205 on the ground that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court, observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance - The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C.  - Section 317 Cr.P.C. which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused - The Magistrate was not powerless to consider the prayer under Section 317 Cr.P.C. as per the view taken by the High Court -  Thus, we do not find any impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance. 

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