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Section 228 of BNSS / Cr.P.C. - Empowers Magistrates to dispense with the personal attendance of the accused during trial, allowing them to appear through an advocate or counsel. The court may issue summons and, if deemed appropriate, exempt the accused from personal appearance while directing representation via legal counsel. The accused must abide by the court's directions regarding appearance. The section also permits the court to require personal appearance when necessary ["Namala Veera @ Vora vs State of Odisha (Vig.) - Orissa"].
Power to Dispense with Personal Appearance - Both Sections 205 and 317 of Cr.P.C. (and similarly BNSS provisions) give magistrates the discretion to exempt accused from personal appearance, especially when their presence is not imperative. Courts are encouraged to adopt a liberal approach, granting exemptions unless the accused's presence is indispensable for the proceedings ["Namala Veera @ Vora vs State of Odisha (Vig.) - Orissa"], ["J.S. PRAKASH vs KOVILAKAM CHITS AND FINANCIAL SERVICE PVT. LTD. - Kerala"], ["SEENA SOBICHAN vs M/S. KLM NIDHI LIMITED - Kerala"].
Conditions for Exemption - Exemptions are often granted on the condition that the accused files an affidavit confirming that proceedings conducted in their absence will not be disputed and that their identity remains undisputed. Such exemptions are granted when represented by counsel, with the accused required to appear when specifically summoned or when court deems their presence necessary ["M.Bhagyalaxmi vs The State of Telangana - Telangana"], ["J.S. PRAKASH vs KOVILAKAM CHITS AND FINANCIAL SERVICE PVT. LTD. - Kerala"].
Legal Precedents and Judicial Views - Courts, including the Supreme Court, have emphasized the broad discretionary power of magistrates under Sections 205 and 317 Cr.P.C. to exempt accused from personal appearance, promoting a liberal interpretation to facilitate justice. The courts have also highlighted that exemptions should not be granted restrictively and should be based on the nature of the offence and the necessity of the accused’s presence ["J.S. PRAKASH vs KOVILAKAM CHITS AND FINANCIAL SERVICE PVT. LTD. - Kerala"], ["SEENA SOBICHAN vs M/S. KLM NIDHI LIMITED - Kerala"].
Specific Cases and Applications - In several instances, accused persons have successfully moved applications under Section 228/BNSS for permanent or temporary exemption from personal appearance, often submitting affidavits and appearing through counsel. Such exemptions are granted with the condition that the accused remains available for appearance when required, and failure to comply can result in the exemption being revoked ["Namala Veera @ Vora vs State of Odisha (Vig.) - Orissa"], ["LALI T.C vs T.V RAMANATHAN - Kerala"], ["M.Bhagyalaxmi vs The State of Telangana - Telangana"].
Analysis and Conclusion:Section in BNSS relating to the dispense of personal appearance of the accused (Section 228) provides magistrates with broad discretionary powers to exempt accused from appearing in person during trial, primarily to facilitate justice and reduce unnecessary hardship. Exemptions are granted conditionally, often requiring affidavits and representation through counsel, and are subject to the court’s discretion based on the nature of the case. Judicial precedents reinforce a liberal approach, emphasizing the importance of balancing procedural efficiency with the rights of the accused ["Namala Veera @ Vora vs State of Odisha (Vig.) - Orissa"], ["J.S. PRAKASH vs KOVILAKAM CHITS AND FINANCIAL SERVICE PVT. LTD. - Kerala"], ["SEENA SOBICHAN vs M/S. KLM NIDHI LIMITED - Kerala"].
In the evolving landscape of Indian criminal law, the , which replaced the , effective from , has introduced nuanced provisions for procedural fairness. A common query among legal practitioners, accused persons, and the public is: Under which provision in BNSS is notice issued to the accused before ?
Typically, courts take cognizance of an offense upon examining a complaint or police report, without prior notice to the accused. Notice, often in the form of summons, follows cognizance under provisions akin to (now mirrored in ). However, when issuing such summons, magistrates have discretion to dispense with the accused's personal appearance, balancing convenience with justice. This guide delves into these provisions, focusing on exemptions under (corresponding to ), judicial safeguards, and recent case law under BNSS. Note: This is general information; consult a qualified lawyer for case-specific advice.
marks the court's initial application of mind to determine if an offense exists, typically without hearing the accused. Post-cognizance, process issuance—via summons or warrant—serves as notice to the accused to appear.
Under BNSS, the framework ensures the accused is informed promptly, but isn't always mandatory at the outset. This prevents undue hardship, such as for those facing distance, illness, or other challenges, while safeguarding trial progress.
A pivotal provision linked to summons issuance is , which empowers magistrates to exempt the accused from right from the summons stage:
Whenever a Magistrate issues a summons, he may, if he sees reason so to do, of the accused and permit him to appear by his pleader.
This discretionary power applies at initial and subsequent stages, justified by factors like geographical distance, physical infirmity, or undue hardship. It's not an absolute right but granted judiciously on a case-by-case basis .
For instance, in cheque bounce cases under , petitioners have successfully sought exemptions pre-bail, citing health issues. Courts have directed re-evaluation, emphasizing discretion in compelling circumstances .
For trials, () allows magistrates and sessions judges to dispense with appearance:
The court may, at any stage of the proceedings, in its discretion, direct the of the accused, and if necessary, enforce such attendance in the manner provided.
Exemption here requires judicial caution—courts must ensure no misuse, often mandating counsel's presence and undertakings to appear when summoned . Orders are , revocable if circumstances change .
The underscores:
The purpose of attendance of the accused at trial is not merely a formality or compulsion, but for the reason that trial be conducted in an expedient manner and not hampered or prejudiced in the absence of the accused.
Post-BNSS implementation, high courts have entertained petitions under (revision) for dispensing appearance. In one matter:
This Criminal Petition is filed under Section 528 Bharatiya Nagarik Suraksha Sanhita (for short ‘BNSS’) by the petitioner/accused No.1 seeking to... dispense with the personal appearance of petitioner-Accused.
Similar reliefs were sought by multiple accused, confining prayers to appearance exemption . Another case involved an application post-summons:
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 .
These illustrate practical application: Accused file affidavits, cite precedents, and courts direct undertakings for future appearances .
Contrastingly, complainant absences under can lead to acquittal if unexcused, highlighting symmetry in attendance rules:
The provisions of Section 279 of the BNSS Act dictate that if the complainant fails to appear, the Magistrate may acquit the accused after providing a 30 days' adjournment.
Courts grant exemptions sparingly:- Only in 'rare and justified cases' like health or distance .- Require undertakings from accused/counsel to cooperate and appear as directed .- Revoke if misused, ensuring no prejudice to prosecution .
High courts remand cases for fresh consideration if initial rejections overlook evidence, promoting fairness .
Exemptions aren't routine:- No Automatic Right: Must demonstrate hardship.- Prosecution Prejudice: Denied if it hampers case progress.- Revocation Power: Court can demand appearance anytime.
Recommendations for Accused:- File detailed applications with affidavits and evidence (e.g., medical certificates).- Appear via counsel initially, commit to future summons.- Approach via for revisions if denied .
For Courts:- Exercise discretion judiciously.- Impose conditions like video appearances where feasible.
This framework under BNSS modernizes procedures, fostering equity. For tailored guidance, engage a legal expert familiar with local court practices.
#BNSS #CriminalLaw #LegalGuide
Section 228 of the BNSS, 2023 (205 of the Cr.P.C, 1973) reads as follows:- “228. Magistrate may dispense with personal attendance of accused. ... On the summons being issued against the Petitioners for their appearance in the Court, the Petitioners moved an application under Section 228 of the BNSS (205 of the Cr.P.C) praying to dispense#HL_E....
BNSS . ... Therefore, Section 355 of the BNSS has no application to the present case. As the complaint was posted for judgment, the Trial Court directed the petitioner to be personally present.
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. ... Having regard to the nature of the offence alleged this Court is of the view that the personal appearance of the petitioner/accused is not required before the Magistrate’s Court. ... This ....
Learned counsel for the petitioner-accused confined his prayer to dispense with the personal appearance of petitioner- Accused. 4. ... VENUGOPAL CRIMINAL PETITION No.13787 of 2024 O R D E R This Criminal Petition is filed under Section 528 Bharatiya Nagarik Suraksha Sanhita (for short ‘BNSS’) by the petitioner/accused seeking to quash....
Learned counsel for the petitioner-accused confined his prayer to dispense with the personal appearance of petitioner- Accused. 4. ... VENUGOPAL CRIMINAL PETITION No.13459 of 2024 O R D E R This Criminal Petition is filed under Section 528 Bharatiya Nagarik Suraksha Sanhita (for short ‘BNSS’) by the petitioner/accused No.1 seeking to ....
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. ... Section 205 states that the Magistrate, exercising his discretion, may dispense with the #HL_....
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. ... 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 #....
their counsel on all the dates of adjournment and their personal appearance as and when directed by the trial Court. ... This criminal petition has been filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking quashment of proceedings in C.C.No.1929 of 2021 on the file of the II Metropolitan Magistrate, Cyberabad at LB Nagar. 3. ... Having regard to the submissions, without going....
Learned counsel for the petitioners-accused confined his prayer to dispense with the personal appearance of petitioners-Accused. 4. ... VENUGOPAL CRIMINAL PETITION No.2702 of 2024 O R D E R This Criminal Petition is filed under Section 528 Bharatiya Nagarik Suraksha Sanhita (for short ‘BNSS’) by the petitioners/accused Nos.2 to 4 seek....
or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case. ... By judgment dated 27.08.2025, the accused was acquitted under Section 279 of BNSS due to his failure to be present on the date specifically posted for evidence. ... Yet again, both parties remained absent and since the case....
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