Section 205 of Cr.P.C allows a Magistrate to exempt an accused from personal appearance prior to bail under compelling circumstances.

ORDER

Dated this the 1^st day of April, 2025 The petitioner is the accused in S.T.C No.52 of 2024 on the files of the Chief Judicial Magistrate Court, Kasaragod. The case originated from Annexure A1 complaint filed by the 2^nd respondent alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act . On receipt of summons in the case, the petitioner filed Annexure A2 application along with Annexure A3 affidavit, to dispense with her personal appearance and for permission to appear through her Counsel to answer the charge and the questions under Section 351 of the BNSS. The learned Magistrate rejected the application on the premise that no provision empowers the court to grant exemption to an accused before he is granted bail. Aggrieved, this Crl.M.C is filed.

2. Learned Counsel for the petitioner referred to paragraph 47 of the judgment of the Apex Court in Sharif Ahmed and Another v. State of Uttar Pradesh and Another [2024 LiveLaw (SC) 337] to contend that the Apex Court has held that the power to grant exemption from personal appearance under Section 205 of Cr.P.C should not be read in a restrictive manner, as if the provision is applicable only after the accused is granted bail. It is submitted that the petitioner is aged 74 years and is undergoing dialysis which makes it extremely difficult, or rather impossible, to be personally present in court.

3. Learned Counsel for the 2^nd respondent submits that even if the Magistrate is conferred with the discretion to exempt the accused from personal appearance before granting bail, such discretion can be exercised only if the prayer is based on acceptable materials. It is the submission of the learned Counsel that no such convincing material, other than an affidavit, was produced by the petitioner.

4. As contended by the Counsel for the petitioner, Section 205 of the Code enables the Magistrate to exempt an accused from personal appearance even prior to his/her obtaining bail. Being contextually relevant, paragraph 47 of the decision in Sharif (supra) is extracted hereunder:

“Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi and Another v. Rani Jethmalani held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law.”

5. There is also merit in the contention of the learned Counsel for the 2^nd respondent that the power to grant exemption, even if available with the Magistrate, ought to be exercised under exceptional circumstances and based on convincing material.

Taking the above factors into consideration, the Crl.M.C is disposed of by permitting the petitioner to produce documents to prove that she is disabled from appearing in court by reason of her ailment and