HYDERABAD: In the light of the stand taken by the prosecution to oppose the petition filed by Andhra Pradesh Chief Minister YS Jagan Mohan Reddy for dispensing with his presence before the CBI court in the pending criminal cases against him, the scope of Section 205 of Code of Criminal Procedure (CrPC), which relates to dispensing with the attendance of the accused is being analysed.
A conjoint reading of all the provisions of the Code of Criminal Procedure, 1973 shows that it is an essential principle of criminal law that trial of indictable offence has to be conducted in the presence of the accused.
Section 273 of the Code of Criminal Procedure, 1973 envisages that the evidence has to be taken in the presence of the accused. However, it provides an exemption that if the personal attendance is dispensed with the same can be taken in the presence of his pleader.
Sec 205 of the Code of Criminal Procedure, 1973 contemplates that whenever a magistrate issue summons, he may, if he sees reasons to do so, dispense with the personal attendance of the accused and permit him to appear by his pleader. It also contemplates that at his discretion, he may enforce such attendance.
A plain reading of the said provision shows that it is the discretion of the magistrate to dispense with the personal attendance of the accused. However, such discretion has to be exercised judiciously.
The word ‘reason’ used in the said section shows that the magistrate has to take the decision giving cogent reasons.
The magistrate while exercising his discretion reasonably, has to take into consideration all the attending circumstances, including social status, customs and practice of the accused and the necessity of the personal presence regarding the nature of the offence and the stage of the trial.
Each case depends upon its own facts and circumstances. The magistrate also may take into consideration the relevant circumstances like inconvenience likely to be caused to the accused if he is required to be absent from his profession and calling for attendance in court, against prejudice likely to be caused if he does not appear in the court.
The magistrate may also take into consideration the seriousness of charges made against the accused while deciding an application under Sec 205 of CrPC.
The magistrate at the time of dispensing with the personal attendance of the accused also has to take into account with regard to any prejudice that may be caused to the administration of criminal justice. The paramount importance is in relation to the administration of criminal justice.
There should not be any impediment in the progress of the trial in case if the presence of the accused is dispensed with. All the afore stated facts have to be taken into account at the time of deciding the application under Section 205 of CrPC.
Sec 317 of CrPC also postulates dispensing with the personal attendance of the accused during the course of enquiries and trial. A comparative study of Sec 205 and 317 of CrPC shows that Sec 317 empowers the court to dispense with the personal attendance of the accused at any stage of enquiry provided he is represented by his counsel and while doing so may direct the personal attendance of such accused at any subsequent stage of the proceedings.
Sub Section 2 of 317 also provides that if the accused is not represented by a pleader or if the judge or magistrate considers his personal attendance is necessary, he may, if he thinks fit and for reasons recorded by him, either adjourn such enquiry or trial or order that the case of such accused be taken up or trial separately.
If both the Sections i.e., Sec 205 and Sec 317 are read jointly, they make it clear that the court has wide powers to dispense with the personal attendance of the accused at all the stages of the proceedings. Sec 317 covers the stage after commencement of the enquiry or trial.
Sec 205 of CrPC deals with the commencement of the proceedings before the magistrate thereby indicating that in appropriate cases the presence of the accused can be dispensed with even at the initial stage, including the first appearance and permit him to appear through advocate.
Therefore, there can be no hard and fast rule laid down with regard to the power conferred upon the magistrate to dispense with the personal attendance of the accused. It all depends upon the facts and circumstances of each case and the magistrate has to take into consideration all the facts stated in the preceding paras while deciding the application.
In case if the magistrate comes to a conclusion that the accused may raise a contention that prejudice was caused to him due to recording of evidence in his absence, in the course of subsequent proceedings, the magistrate may direct the accused to file an undertaking stating that he would not raise any such plea in subsequent proceedings while dispensing with his presence.
Once a bail has been granted by duly taking into consideration the seriousness of the charges, while considering the application subsequently filed under Section 205 of CrPC, the magistrate has to take into consideration only those factors which would be relevant in relation to administration of justice viz. progress of trial and prejudice to administration of justice.
The grounds that were available to the prosecution at the time of opposing the bail may not be available at the time of opposing an application under Sec 205 of CrPC.
The Supreme Court references are (1) 2001 (7) SCC 401, (2) MANU/SC/1646/2011 – Tgn Kumar vs State of Kerala (Crl.A. No. 1845 of 2011) (3) Sri Rameshwar Yadav and others vs State of Bihar (Crl.A.No. 387 of 2018).
Therefore since Jagan Mohan Reddy is the Chief Minister for the State of Andhra Pradesh, it may be an appropriate case wherein his personal attendance may be dispensed with taking into consideration his occupation.
Chittarvu Raghu,
Advocate, High Court of Andhra Pradesh and Telangana