M. Saisdharan Nambiar

1. Petitioner is the first accused in C.C.474/2008 on the file of Judicial First Class Magistrate, Thalassery. Contending that he is now employed in Pune and is not in a position to appear on all the posting days, he filed Annexure-1 application under Section 205 of Code of Criminal Procedure for exempting him from personal appearance at the time of recording his plea and also at the time of questioning under Section 313 of Code of Criminal Procedure. Under Annexure-2 order, learned Magistrate dismissed the petition holding that the decisions relied on by the petitioner are not applicable as they are in respect of summons case and as the case is being tried as a warrant case exemption cannot be granted and after framing of charge the prayer could be considered. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-2 order and to grant the permission is sought for.

2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard.

3. Sub Section 1 of Section 205 of Code of Criminal Procedure provides that 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. Sub Section 2 enables the Magistrate at any stage of the proceedings to direct the personal attendance of the accused, if necessary, in spite of the permission granted under sub section 1. Case of the petitioner is that he is working in Pune and insistence of his presence on each posting day would cause irreparable loss to him. Section 205 enables the Magistrate at his discretion to exempt the presence of the accused at the time of trial. True it is the discretion of the Magistrate to grant exemption. But the discretion is to be exercised considering not only the convenience of the prosecution but also the difficulties expressed by the accused. For the purpose of recording the plea of the accused, under Section 246(2) of Code of Criminal Procedure, charge shall be read and explained to the accused and he shall be asked whether he pleads guilty or has any defence. Similarly, Section 313 of Code of Criminal Procedure provides that court may at any stage without previously warning the accused put such question to him as the court considers necessary and shall after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case. So also Section 317(c) of Code of Criminal Procedure, Magistrate for reasons to be recorded can dispense with the attendance of the accused. Hence in spite of the mandates under Section 273 of Code of Criminal Procedure that all evidence at the time of trial is to be taken in the presence of the accused, exemption can be granted in appropriate cases.

4. Apex court in Chandu Lal Chandraker v. Puran Mal and another (1988) Supp. SCC 570) declared that in a given case even the statement of the accused under Section 313 could be dispensed with, if the accused requests and undertakes that he would not raise any question of prejudice for his non examination at any subsequent stage of trial, appeal or revision. In such circumstances, I find no reason to hold that the plea of not guilty cannot be allowed to be pleaded by the counsel for and on behalf of the accused in appropriate cases.

5. The normal rule that evidence is to be recorded in the presence of the accused and the need to insist for the presence of the accused are explained by the Apex court in M/s. Bhaskar Industries Ltd. v. M/s.Bhiwani Denim and Apparels Ltd and others (AIR 2001 (3) SC 3625) as follows.

"14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the Court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administratio