Dispensation of Personal Attendance by Magistrate: Section 205 Cr. P.C
Justice v Ram Kumar
Former Judge
Kerala High Court
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Dispensation of Personal Attendance of the Accused before the Magistrate u/s 205 CrPC
- By Justice V. Ramkumar(Former Judge Kerala High Court)
Section 205 of the Code of Criminal Procedure, 1973(“Cr.P.C.” for short) states that whenever a Magistrate issues a summons, he may if finds any reason to do so dispense with the personal attendance of the accused and permit the accused to appear through his/her counsel. If the summons does not permit him to appear through his counsel, the accused has to give valid reasons as to why he/ she is unable to personally appear before the Magistrate. In cases where a non-bailable warrant is pending against the accused, he may also apply for permanent exemption from appearance in the case u/s 205 Cr.P.C. as mentioned in the case of Sarath S. v. State of Kerala 2017(3) KHC 383 where it has been clearly stated that mere pendency of a non-bailable warrant cannot be a ground to refuse an application filed u/s 205 Cr.P.C. In the case of V.S. Reddy v. Excel Glasses Ltd.2010 KHC 548, it was held by the Kerala High Court that the accused can make his first appearance through his counsel. In cases where the accused has been given permanent exemption u/s 205 CrPC, then the Magistrate can still record his plea via his counsel as has been held in the case of Bhiwani V. Denim & Apparels Ltd AIR 2001 SC 3625. An affidavit needs to be filed by the accused to obtain dispensation of personal attendance before the Magistrate incorporating 3 important aspects:
a) The evidence may be given in his absence thereby forfeiting his right under Section 273 of the Cr.PC
b) His counsel may be permitted to represent him during his absence.
c) Since the trial is going to be held in his absence, he will not raise any dispute about the capacity of the prosecution witnesses to identify him.
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