The court established that exemption from personal appearance can be granted after the issuance of summons, especially in cases where the offences do not involve moral turpitude.

K.V. Sankaranarayanan, J.

Petitioner has filed a complaint petition against a daily newspaper alleging that publication of a news item was defamatory and it amounted to an offence under S.500 I.P.C. It is pending as C.C. No. 474/96 on the file of the Chief Judicial Magistrate, Kottayam. The second respondent is the Chief Editor of the newspaper. He also happens to be the Chief Minister at present. The second respondent sought exemption from personal appearance by C.M.P. No, 4193/97. The learned Magistrate has considered and granted the prayer. This petition is filed for quashing the order of the learned Magistrate granting exemption to the second respondent from personal appearance. A perusal of the order of the learned Chief Judicial Magistrate shows that exemption has been granted on the basis that the second respondent who is the second accused in the case is only the Chief Editor. He is the Chief Minister also. The offence is not one involving moral turpitude and being a busy person, exemption from personal appearance will be justified.

2. It is contended by learned counsel for the petitioner that though exemption from personal appearance may be justified at the trial stage, in this case, second respondent has not appeared in Court even on one occasion and so the order was not justified. S.205 Cr.P.C. permits exemption from appearance at the initial stage. S.317 Cr.P.C. deals with such exemption during the actual trial. Learned counsel for the respondent has pointed out the decisions in Helen Rubber Industries and Ors. v. State of Kerala (1972 KLT 794) and Mathew v. State of Kerala (1986 KLT 128) and contended that exemption from appearance granted was proper. These decisions show that where the offences are of a technical nature or do not involve moral turpitude, exemption should be the rule and the Court should not insist on personal appearance of the accused person. But learned counsel for the petitioner contends that the accused has to appear in Court at least once and seek and obtain bail. According to learned counsel, exemption can be granted under S.205 Cr. P.C. only if the Magistrate decides to exempt the accused from personal appearance even at the time of issuance of summons and not at a later stage.

S.205(1) reads as follows:

"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."

It is contended by learned counsel for the petitioner that this right to exempt must be exercised by the Magistrate when the summons is issued. If summons is already issued, the accused has necessarily to appear and then seek bail. But there is nothing in S.205(1) to indicate that the power to grant exemption from personal attendance cannot be exercised after issuance of summons. The Section only means that in cases where the Magistrate issues a summons, he can dispense with the personal attendance of the accused. Such exemption is not expected in cases where the Magistrate decides to issue warrant. The decisions on the point indicate that the right can be exercised on an application. Such applications can be filed only when summons is issued and not earlier. Some decisions even go the the extent that warrants issued can be withdrawn and exemption granted under S.205 Cr.P.C. on application of the accused. In this case, there is nothing to find that the Magistrate has exercised the discretion illegally or irregularly. No interference is called for. Hence, this petition is dismissed.