K. Sunil V/s State

IN THE HIGH COURT OF DELHI AT NEW DELHI

03.07.2008

Present: Mr. K. Sunil for the petitioners
Mr. Pawan Behl for the State

Crl. M.C.No.1303/2008 and Crl. M.A.4923/2008

The petitioners are aggrieved of the order dated 17.4.2008 passed by Shri
Rajender Kumar, ASJ, Delhi in SC- No.30/2006, whereby the application of the
petitioners for exemption from personal appearance under Section 205 and 317 of
Cr.PC, till such time the Court directs their appearance at a subsequent stage,
has been rejected. This application was rejected on the ground that merely
because the petitioner is an advocate or an agriculturist or a businessman and
has to travel a distance of about 1100 k.m. on each hearing, cannot in itself be
a ground for permanent injunction for appearance in the trial. The counsel for
the petitioners has drawn my attention to the fact that in the application
itself, which was moved before the Trial Court, the petitioners have pointed out
that they have not been disputing their identity and, therefore, the proceedings
before the Trial Court would not be hampered on any such ground. At the same
time, they had also consented to the entire cross-examination and evidence being
recorded in their absence. They also gave an undertaking to the effect that
whenever their appearance would be required by the Court, they will present
themselves before the Court.
It is well known that in criminal proceedings, the accused persons have a
right to be present during the trial to defend themselves either in person or
through a counsel of their choice. However, it cannot be said that there is any
compulsion on such accused persons to appear in person at every stage of the
trial. Furthermore, the Code nowhere enumerates such presence. On the other
hand, the Code provides power to the Court to exempt such appearances in cases


where such appearance is not necessary. The Supreme Court in Bhaskar Industries
Ltd. Vs. Bhiwani Denim and Apparels Ltd. (2001) 7 SCC 401 observed that;
?The concern of the Criminal Court should primarily be the administration of
criminal justice. For that purpose, the proceedings of the Court in the case
should register progress. Presence of the accused in the Court is not for
marking his attendance just for the sake of seeing him in the Court. It is to
enable the Court to proceed with the trial. If the progress of the trial can be
achieved in the absence of the accused, the Court can certainly take into
account the magnitude of sufferings which a particular accused person may have
to bear with in order to make himself present in the Court in that particular
case.?

It is, therefore, illogical that even though the presence of the accused does
not in any way cater the progress of the trial, the accused must be present. On
the other hand, if the accused person himself does not wish to avail that right
of personal appearance on every date, the Court should not arbitrarily deny him
such exemption if in the interest of justice, such exemption can be given. In
this regard, the counsel for the petitioners has relied upon the case of Bhagwan
Das and Ors. Vs. State reported as AIR 1953 ALL 630 (Vol. 40 C.N. 315) whereby
it is stated as follows:-
?The law enjoins that an accused should be present during the course of the
trial more to safeguard his interests than to cause him inconvenience. In a
case where the accused himself applies to the court to be exempted from personal
appearance, then a court should grant the request unless it is of opinion that
in the interests of justice it is necessary that the accused should be present
throughout the course of the trial, or unless there are some other good reasons
for directing the presence of the accused throughout the course of the trial.
Under the circumstances of this case, we are of the opinion that it would be a
hardship for the accused to be present during the course of the trial in the
Court of the Magistrate which may, for all we know, be a protracted and lengthy
one.?

The counsel for the petitioners has also cited a judgment of Madras High Court
in A. Sundara Pandian Vs. State, 1987 (3) Crimes 655 whereby it is held as
follows:-
?Courts should not hesitate to dispense with the personal appearance of the
accused, unless the interest of the prosecution would thereby suffer or under
the Code itself the presence of the accused is statutorily required.?


To the same effect the petitioner is also citing decision of the Jharkhand
High Court in the case of Dr. Prakash Amrut Mody and Anr. Vs. State of Jharkhand
reported as 2008 (1) BLJ 58.
In this case, it is held as follows:-
?The test basically is the assurance that the court?s proceedings would not be
hampered by allowing the personal attendance of the accused to be dispensed
with. It would no doubt also depend upon the gravity of offence. The approach of
the Magistrate should be to see whether personal attendance is absolutely
necessary for the purpose of case. While considering prayer for protection under
Section 205 Cr.P.C., the Magistrate should not adopt too technical or stringent
approach through the discretion should not be used liberally ?. Mere asking of
it. Regard should be had to exceptional special circumstances and the
inconvenience which the accused is likely to suffer on account of distance or
physical disability or for any such good reason, if his personal attendance is
insisted upon on each and every date till the conclusion of the trial.?



In S.V. Mazumdar and Ors. Vs. Gujarat States Fertilisers Company Ltd. (2005) 4
SCC 173, the Supreme Court observed as follows;
?it is has to be borne in mind that while dealing with an application in terms
of Section 205 of the Code, the Court has to consider whether any useful purpose
would be served by requiring the personal attendance of the accused or whether
progress of the trial is likely to be hampered on account of his absence.?

As far as the precaution which is necessary for the further progress of the
proceedings in case an exemption from appearance is granted, the Supreme Court
in the case of Bhaskar Industries Ltd. (supra) observed that;
?...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 the counsel on his behalf would be
present in court and that he has no objection in taking evidence in his
absence?.

In the case at hand, as already pointed out, the accused themselves are
undertaking not to raise any issues with regard to their identification and also
that they will present themselves whenever their personal appearance is
required.
In that view of the matter, the petition deserves to be allowed. The
petitioners are exempted from personal appearance in SC-30/2006 in State Vs.
Shri Raja Ram Yadav and Ors. arising out of FIR No.166/99 under Sections 308/34
IPC, Police Station Dilshad Garden and permit the petitioners to appear only on
those dates when their presence will be necessary in the Court. It is also
directed that their counsel would be present in the Court whenever their case is
taken up.
The petition stands disposed of.
Dasti.


Sudershan Kumar Misra, J.
July 03, 2008
Rs