Kerala High Court Diary
The arms of law are long enough to get at an accused. The Magistrate should not forget that there are wide powers in his armory to reach at the accused.Tweet
The general rule in criminal cases is that all inquiries and trials should be conducted in the presence of the accused, the principle underlying being that in a criminal trial the Court should not proceed ex parte against the accused person.
Section 205 of the Criminal Procedure Code, provides,
“(1) 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.
(2) But 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 manner hereinbefore provided.”
The provision gives powers to Courts to exempt the personal attendance of accused. The question is how to exercise these powers. Although this rule is for the protection of the interests of the accused, this does not mean that the accused has a right to absent himself from Court and that the Court should necessarily grant his prayer for exemption from personal attendance.
Section 205(1) gives the Magistrate jurisdiction to dispense with personal attendance of the accused while issuing summons and the power to permit him to appear through his pleader.
Sub-section (2) of section 205 authorizes the Magistrate to compel the attendance of the accused at any stage.
The policy of the Legislature in enacting this provision is to enable Courts to freely exercise this power in the interests of justice and for expeditious disposal of cases. It is useful to remember that these salutary provisions have been incorporated in the Code of Criminal Procedure to be resorted to help the accused and not to deny them their benefits. The refusal to extend to the accused the benefits of these sections in appropriate cases is to deny them justice. Courts should try to dispense justice more than law.
The dignity of Courts will be preserved by being generous and liberal towards parties generally but harsh and even cruel when justice demands it. The lower Courts should not tend to derive a sadistic pleasure in making large number of accused to crowd the Court without sufficient cause and make them wait from morning till evening. The lower Courts should also guard against any tendency which leads to harassment of the parties coming before them.
Where the Court finds that the appearance of the accused is not necessary for a disposal of the case and where an Advocate undertakes on behalf of the accused to be present in Court, the Courts should be liberal in exempting the accused from personal attendance. It is useful to remember that an Advocate before Court is a responsible officer and when he undertakes on behalf of an accused to be present in Court it has to be given due weight Courts should be generous in extending the benefits of Sections 205.
In cases which are grievous in nature involving moral turpitude, personal attendance is the rule. But in cases which are technical in nature, which do not involve moral turpitude and where the sentence is only fine, exemption should be the rule.
The Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the Court feels ‘that his presence necessary for effective disposal of the case. When the accused are women labourers, wage-earners and other busy men. Courts should as a rule grant exemption from personal attendance. Courts should see that undue harassment is not caused to the accused appearing before them.
In special cases where the Courts feel Presence of the accused necessary it should be insisted upon. The arms of law are long enough to get at an accused. The Magistrate should not forget that there are wide powers in his armory to reach at the accused.
Court can in revision exempt the personal attendance of the accused in cases pending before the lower Court or direct the lower Court to grant exemption from personal attendance of the accused before them, where such Courts have refused to do so.
As held by Kerala High Court in Helen Rubber Industries Kottayam vs State Of Kerala And Ors: 1973 CriLJ 262