Order 1

Pdf Text: 1 C. C. No.1809/SS/2018
ORDER BELOW EXH.14
1. This is an application made on behalf of accused praying
for permanent exemption on the ground that he is permanent resident
of Hyderabad. He is doing business there due to which he has to travel
at various places. So it is not possible for him to remain present before
the Court on each date of hearing.
2. Complainant has given say on this application in following
terms :
a. accused should give undertaking that in his absence matter
should proceed.
b. accused should give assurance before the Court that his advocate
should not give any excuses such as ‘no instructions’, ‘no
communication’ with accused to continue with proceeding.
3. Heard both side at length. Perused record. Admittedly,
accused is being prosecuted upon a complaint filed by the complainant.
It is a summary triable case. Section 205 of the Code of Criminal
Procedure, 1973 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. It
further provides that in case the Magistrate inquiring into or trying the
case, may in his discretion, at any stage of the proceedings, direct the
personal attendance of the accused, and, if necessary, enforce such
attendance in the manner herein-before provided.
4. Personal appearance of an accused in a criminal trial is a
normal rule and exemption is an exception subject to judicial discretion.
The Hon’ble Apex Court in the case of Bhaskar Industries Ltd Vs
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Bhiwani Denim and Apparels Ltd. (2001)7 SCC 401 has considered the
issue of granting exemption at length and has stated thus:
“Thus, in appropriate cases the Magistrate can allow
an accused to make even the first appearance
through a counsel. The Magistrate is empowered to
record the plea of the accused even when his counsel
makes such plea on behalf of the accused in a case
where the personal appearance of the accused is
dispensed with. Section 317 of the Code has to be
viewed in the above perspective as it empowers the
Court to dispense with the personal attendance of
the accused (provided he is represented by a counsel
in that case) even for proceeding with the further
steps in the case. However, 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 examination of the
witnesses.”
5. Thus, 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. Now turn to case in hand. Being the accused is
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3 C. C. No.1809/SS/2018
permanent resident of Hyderabad and has to travel at various places for
business, insistence of personal presence of accused would itself inflict
enormous suffering and the comparative advantage would be less.
Moreover, no prejudice is likely to be caused to complainant if
application is allowed. On the contrary in case the accused had sought
exemption from time to time that would have certainly delayed the trial
of the case rather than expediting the same. Delay in trial is neither in
the interest of the complainant nor the accused. Therefore, such
discretion need be exercised in the interests of justice. Hence, I pass
following order.
ORDER
1) Application is hereby allowed subject to condition that the
accused to give an undertaking in following terms on or before
next date.
a) That accused would not dispute his identity,
b) That a counsel on his behalf would be present in the
Court on all dates of hearings. In case of default, this
order will vacate automatically and necessary
consequences will follow.
c) That he has no objection for taking evidence in his
absence.
d) That the accused will answer the substance of
accusation through his advocate.
e) That he will reply to the statement u/s.313 of Cr.P.C.
also through his advocate and for which he will have no
objection.
Sd/-
(Ketaki M. Chavan)
Metropolitan Magistrate,
Date : 08/11/2019 63rd Court, Andheri, Mumbai
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