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2224 February 02 2023

Application for Exemption from personal attendance in court [Sample Format]

Application for Exemption from personal attendance in court [Sample Format] 


Under Section 205 of the Code of Criminal Procedure, 1973, a magistrate has the power to grant the accused an exemption from personal attendance in court when he is represented by his advocate. The advocate who filed Vakalatnama will be present during the trial on behalf of the accused. 

Under this section, a Magistrate issuing a summons may dispense (do away with) personal attendance of the accused. This section covers every case in which a summons is issued. In case of Basumoti Adhikarini V/s Budram Kalita in 1893 apex Court established the fact that it is not confined to summons cases only. More importantly, in case of Abdul Hamid V/s King Emperor in 1923 laid down that Magistrate may direct the personal attendance of the accused at any stage of the proceedings. But if a warrant is issued against an accused person, his personal attendance cannot be dispensed with. Also basic principle laid down in case of S Madhava V/s Canbank Tractors ltd in year 2003, personal attendance cannot be sought directly in the Hon’ble High Court under section 482 of Cr.P.C., Unless remedies available before the trial Court should be first exhausted.

Exemption from personal attendance is Court discretion but at the same time Court must reasonably use the discretion of granting such exemption under this section, after due consideration of all the attending circumstances including the social status, customs and practice of the accused and the necessity of accused personal attendance having regard to the nature of the offence and the stage of the trial.

Power conferred under this section is discretionary and no hard and fast rule can be laid down as to the manner in which it is to be exercised. The Court is to exercise the discretion after looking into all the relevant circumstances like inconvenience likely to be caused to the accused if he required to be absent from his profession, trade, occupation or calling for attendance in Court, against prejudice likely to be caused if he does not appear.

Keep in mind as advocates, you have to be prepared for argument because deciding factors will be the Court addresses itself is whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence.

I am not ignoring that in the case of Indian women as there is still a great prejudice in this country against appearance of female in Courts and public places. Apex Court in case of Sushilabala Mitter V/s The State (1952),if medical practitioner certified that accused is not in a fit physical condition to undertake a long journey to appear personally in Court then Magistrate has to exercise his discretion considering all relevant information provided by the advocate.

As in case of Mangarao V/s State of U.P. (1992), technical cases where no moral turpitude is involved, where the accused are women’s, old and sickly persons, factory workers, labourers and busy business people, the Court should exempt such persons from personal attendance.

In 1988, case of SR Jhunijhunwalla V/s BN Poddar, on exempting the accused from the personal attendance, the complainant has no right to be heard. However, the Magistrate must give reasons for granting exemption.

This article is written by Adv. Alok Kumar practicing advocate in Delhi NCR. This article helps litigant, young interns and advocates for drafting simple application like exemptions from personal attendance/appearance. 

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Author

Adv. ALOK KUMAR

Advocate Serving Delhi NCR

Delhi High Court & District Courts

LL.B.▪︎Faculty of Law▪︎Delhi University