 Good evening, friends. And as we took the session on section 205, the legal journey and that we received a lot of messages to understand the subtle difference between section 205 and 30017 CRPC. Despite the fact that just as Ram Kumar was quite busy, but keeping in view the request we received on the WhatsApp as well as on the YouTube. We requested him to share his knowledge of the prior during the absence of the accused. The analysis or what we say comparison under section 205 as well as 317 of CRPC. As usual, that should be a short talk and short insights. And without taking much time, I request sir to share his insights. What do you say. Thank you, Mr. Vikas. The other day, we had discussed the contours of section 205 class one CRPC, as per which the magistrate while issuing summons under section 204 CRPC can dispense with the personal attendance of the accused and permit him to appear through a pleader. Now, today we will examine the difference between section 205 and section 317 CRPC. There's a lot of confusion between among some members of the bench and the bar as to 205 is the section or 317 is the section. Section 2051 plus one of section 205 CRPC, which is in chapter 16 pertaining to commencement of proceedings before magistrates. It deals with the power of the magistrate to grant exemption from initial appearance and not during trial. Therefore, it falls in chapter 16 commencement of proceedings. See, the chapter 16 start with section 204 as per which the magistrate issues summons process is issued to the accused. Therefore, at the same time, the magistrate can present the exempt personal appearance of the accused and give him the option of appearing through his pleader. That is where section 205 applies. Now, you kindly note the wording of summons in the form number one of the second schedule to CRPC. The set format gives the wording of the summons. If you notice the wording of the summons, it gives an option to the accused either to appear in person or by his pleader. You are therefore directed to appear in person or by a pleader. So that option is given in the summons form itself in form one of second schedule to CRPC. That means even in the summons form, the power under section 2051 CRPC is exercised by the magistrate by giving him giving the accused the option to appear through his pleader. And option to remain absent and appear through pleader. This is the permission given by the magistrate under section 205 once CRPC while issuing summons. Where the magistrate has granted such exemption at the initial appearance, then subsection 205 reserves the power of the magistrate to enforce his attendance at any time during trial. After having permitted him to remain absent and to appear through his counsel, the magistrate has got the power at any time of the proceedings to ask him to appear. That is subsection 205. Now, any discussion on section 205 CRPC will be incomplete without reference to section 317 CRPC and vice versa. Any discussion on section 317 will be incomplete without reference to section 205 CRPC. If the judge or the magistrate at any stage of inquiry or trial wants to exempt the accused from personal attendance before court, section 3171 CRPC is the provision, appropriate provision which enables the court to pass such an order for exemption. Section 317 occurs in chapter 24 CRPC dealing with the general provisions of inquiries and trials. Therefore, 317 occurs in the general provision for inquiries and trials. Therefore, 317 operates only during inquiry or trial. In Rameshwar Yadav v. state of Bihar, AIR 2018 Supreme Court 1435, the author of the judgment is Justice Ashok Bhushan. It was held that even in a petition filed under section 205 CRPC, the magistrate is not powerless under section 3171 CRPC to consider the prayer for exemption from personal attendance during trial. See, it all occurred due to confusion among some members of the bar and the bench. See, very often 205 is the provision involved during inquiry or trial. But actually 205 is the provision to be involved either the magistrate himself may invoke it along with the summons in the summons form itself. Or immediately after appearance, the accused can invoke section 2051. But after the commencement of inquiry or trial, 317 is the provision to be invoked. Therefore, the Supreme Court made it clear that even if 205 is invoked, the magistrate is not powerless under section 3171 CRPC to consider the prayer for exemption from personal appearance. Now the power under section 317 CRPC also includes the power to excuse the absence of the accused on any particular day on which the case stands posted provided he files an application through his counsel explaining the reasons for the absence. Likewise, this section also empowers the court to dispense with the personal attendance of the accused in cases where the accused is persistently disturbing the proceedings in court. Supposing the accused is in a rebellious mood, he does not allow the court to carry on with the proceedings. In fact, we had an under trial prisoner who flung his slippers at the magistrate, but flung his slippers at the magistrate. He was very often calling bad names to the magistrate, to the counsel, to the prosecutor, all those in present in court. That would be a fit case where the court would be exercising the power under section 317 to exempt him from personal appearance. No, such a person should not be allowed to dislocate the proceedings. The court has also the power under section 3172 to enforce is after having exempted him from appearance, court can always ask him to appear at any stage of the proceedings. In all cases where the court has for section 3171 CRPC is granting exemption to the accused from personal attendance during the stage of trial. At the instance of the accused, it can be done only on his application with an affidavit incorporating the three conditions which we discussed while considering section 205 CRPC. This is not a provision in the CRPC. This is a judgment made law. The three conditions required to be stated in the affidavit are that evidence may be recorded in his absence. He is going to remain absent and if his permission is granted, the court grants the permission, he is going to remain absent in the dock. He will not be in the dock. Then who will represent him? His counsel may be permitted to represent him during his absence. Third condition, since evidence is going to be recorded in his absence, he will not raise any question regarding identity. The two rulings both by justice Katie Thomas. I had given you the other day anyway for the sake of even at the risk of repetition, I shall give the citation. UP Pollution Control Board versus Mohan Makin's Limited, AIR 2000, Supreme Court 1456. Second one, Bhaskar Industries Limited versus Bhivani Denim and Apparel's Limited, AIR 2001, Supreme Court 365 both by justice Katie Thomas. Because we have noticed that by filing such an application, the accused is actually forfeiting his rights under Section 273 CRPC, which enjoys that evidence shall be taken only in the presence of the accused. He has a right to be present when evidence is recorded against him. That right he is forfeiting by filing such an application. But while he is forfeiting his right to be present in court, he is also depriving the prosecution witnesses an opportunity to identify him. Because during the trial of the case, the accused is not in the dock. Therefore the prosecution witnesses will not be able to say that he is the person who attacked me. He is the person who assailed you, who is the culprit. They cannot identify him. Therefore normally a person can be found guilty by the court only when the victim or a witness identifies him in court. Now that right to the victim or a witness, he is deprived, he is denied by the accused by remaining absent. Therefore he has to be penalized for that. That is by the third condition. During his absence, if during the trial, during his absence, he will not raise any question regarding identity. Therefore after the trial is over, he cannot turn around and say, No, no, nobody has identified me as the assailant, as the culprit. Therefore the court cannot convict me. No, he will not be heard to say that. We notice that by filing such an application. Now again there is one more decision. Our Annapurna v. Ramadugu Anandakrishna Shastri. 2002 Vol. 10 SCC 401. Again by Justice K. D. Thomas and R. P. Sethi. If the accused persons who could not succeed, that is the case where the accused persons could not succeed in getting the criminal proceedings against them. Quashed by the High Court of Andhra Pradesh. Due to the opposition by the first informant Annapurna. Then since they could not succeed, they made a second attempt before the same High Court. Without making Annapurna as a party. This time they succeeded. On coming to know of the order, the Annapurna made a request to the High Court to recall the order. But that was dismissed. Consequently, she was constrained to approach the Supreme Court. The apex court set aside the second order passed by the High Court, which was passed behind her back. The Supreme Court while disposing of the matter, however, permitted the respondents accused to move the trial code for exemption from personal appearance on the aforesaid three conditions which were laid down by the two rulings referred to earlier. There's one decision which is worth mentioning. It's a decision by justice as Patmanabhan of the Kerala High Court way back in 1986. The citation is Matthew versus state of Kerala 1986 KLT 128 very, very, very, very with the observation. The very existence of courts is for dispensation of justice. The process of court should not be used for harassment of litigants. The insistence on the appearance of parties before court need be only if it becomes absolutely necessary for some purpose. Courts are entitled to compel the appearance of the accused. But such insistence should not be for the mere pleasure of the accused being seen in the dark. Sometimes his presence may be absolutely essential, say for instance, for questioning him or for himself being identified by the witnesses. Insistence on his appearance in such cases may be alright. To insist on his appearance on a day when his appearance has nothing to do with the progress of the case will only result in unnecessary harassment, and he has some inconvenience and his counsel is prepared to represent him. There is a ready counsel prepared to represent him and he may be having some inconvenience and nothing is going to happen on that day. Just it's a formal posting. If on that day also the court insists on his personal appearance and penalizing for his absence, it will be very harassment, nothing judicial harassment. In yet another case by the Karnataka High Court, by Justice Nesarghi, para-10 of Subarao K versus State, 1979 Kermin Law Journal 369 Karnataka, the author of the judgment is Nesarghi, Justice Nesarghi. His lordship held that the magistrate was wrong in dismissing the application under section 317 CRPC for the reason that counsel for the accused had filed only a memo of appearance and not a vakaalat or special vakaalat. Vakaalat is the prescribed form, but this is a criminal case where the liberty of the accused is involved. Therefore, even if the memo of appearance is filed instead of a vakaalat, you can't find a fault with the counsel and deny him benefit. Now, supposing on a particular day the accused remains absent when the case is called and there is neither the representation by the counsel nor any petition seeking exemption for his absence giving reasons is filed. What will be the consequence? The consequence will be that the court will be entitled to proceed against the accused and his sureties if any under section 446 CRPC for realization of the penalty. Mind you, while executing a bail bond, the accused and his sureties are executing separate contracts with the government that in the event of the accused failing to appear before court. Bond will be for appearance. In the event of the accused failing to appear before court, the accused as well as the sureties will separately forfeit to the government the sum prescribed in the bail bond. That is why when the court grant bail, court will say that he is directed to be released or he is released on bail on his executing a bond for rupees 10,000 with two solvent sureties each for the like amount. These are the usual readings of the court. Therefore, once he commits a breach of that condition by remaining absent, court has got the power to proceed under section 446 CRPC for recovering this amount. Of course, there are some rulings which say that there are two opportunities to be given. Once he remains absent, the bond is automatically forfeited. For that you may kindly read form number 47 in the second schedule to CRPC. It says you had executed a bond agreeing to forfeit to the government such and such amount on your default. By committing default, you have forfeited the bond. The forfeited bond is automatic. Once the bond is forfeited, then he has to be given an opportunity as to why the bond amount should be recovered as penalty, For that he can give reason. For example, he was laid up with COVID and he was unable to communicate with his lawyer, maybe a valigram or there was a hartal disabling him from coming because there was no transport, disabling him from coming to go. Or his mother died and he was attending to her obsequies. Or he was already in prison in some other case, so he couldn't come to the court. These are all valigrams whereby the court may either wholly or in part exempt him from paying the penalty. With that we conclude our discussion on section 370. So we have combined section 3205 and 370. 205 is at the initial stage when summons is issued. Magistrate, when the magistrate is in the summons itself, gives him the option to appear through a pleader. It is 205 clause 1 which is invoked. Then after the commencement of inquiry or trial, it is section 370 which is to be invoked and the magistrate can, on his application, grant permission provided, he files an affidavit incorporating the three conditions referred to above. With that we conclude this discussion. Thank you. Thank you sir. Those who have missed the previous webinar can always log in on the Beyond Law CLC and see the previous webinar in respect of section 205. And be that as it may, Justice Ram Kumar has been kind enough to share his deep knowledge and you need not deep dive further in the knowledge of law because Justice Ram Kumar covers this intensively and extensively. And what we say, expensively as well as not expensively. But yes, the knowledge is very expensive. For that you can always watch his previous webinars. You can like, share and subscribe to the channel of Beyond Law CLC. I'm sharing my knowledge and experience free of charge to the entire legal fraternity in the country and abroad. 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