The court affirmed that under Section 205 of Cr.P.C., an accused may be exempted from personal appearance if represented by counsel and certain conditions are met.

ORDER

The petitioner is accused No. 2 in C.C.No.101 of 2017 on the file of the Chief Judicial Magistrate Court, Pathanamthitta. She faces charges under Sections 419 , 420, 465 , 468 r/w Section 34 of IPC . On receipt of the summons, the petitioner appeared before the Court. During the course of the trial, the petitioner got a job offer in Kuwait. The petitioner filed an application under Section 205 of Cr.P .C. seeking exemption from appearance in the Court and to permit her to be represented through a lawyer.

2. The trial Court rejected the application submitted by the petitioner as per Annexure-A4. The petitioner challenges the dismissal of the application under Section 205 Cr.P .C. in this proceeding.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The learned counsel for the petitioner submitted that the presence of the petitioner during the course of trial is not at all required in view of the nature of the charges levelled against her. The learned counsel further submitted that the petitioner is prepared to undertake that she would not dispute her identity, a counsel on her behalf would be present in the Court and that she has no objection in taking the evidence in her absence treating the presence of the counsel as her presence in compliance with section 317 of Cr.P .C..

5. In Bhanujan v. Jayabhanu [1993 (2) KLT 889] , this Court while dealing with the scope of Section 205 Cr.P .C. held that the Magistrate has discretion to dispense with personal appearance of the accused in Court. It was further held that in appropriate cases the Court can, on conditions, allow the accused not to appear in person and permit him to be represented through a counsel.

6. In M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd. and Others [AIR 2001 SC 3625] , the Apex Court held that Section 205 (1) of Cr.P .C. permits the Magistrate to enable an accused to get permanent exemption from appearance on the following conditions:-

(1) accused shall undertake that he would not dispute his identity as the particular accused in the case

(2) he should undertake, that the counsel in his behalf should be present in Court

(3) that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence.

7. This Court in Sarath v. State of Kerala [2017 (3) KLT 95] held that pendency of non-bailable warrant cannot be a ground for refusing the request under Section 205 of Cr.P .C..

8. This Court in Moosa Pattupura v. State of Kerala [2022(2) KHC 293] held that Section 317 (1) Cr.P .C. empowers the Judge or Magistrate to dispense with the personal attendance of the accused and proceed with trial in his absence. This Court further observed that ordinarily the Court should be generous and liberal under Section 205 and of Cr.P .C. and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable.

9. Having regard to the facts of this case, I am of the view that it is not imperative for the Court to insist the presence of the petitioner during the course of trial.

Therefore, the Crl.M.C. is allowed.

(i) The order dated 20.03.2023 in Crl.MP No.622 of 2023 is set aside.

(ii) The petitioner is granted permanent exemption from appearance under Section 205 (1) of Cr.P .C. and to represent her by her Counsel at the time of trial.

(iii)The petitioner shall file an affidavit in tune with the directions in M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd. and Others through her counsel.