This article discusses the difference between Section 205 and Section 317 of the Code of Criminal Procedure, 1973, for filing of the application to dispense with personal attendance. In addition, the article also discusses the contours of applicability of the aforesaid sections.

For proper appreciation of the legal provisions, the aforementioned sections are reproduced herein:
"Chapter XVI, Commencement of Proceedings Before Magistrates – Section 205. Magistrate may dispense with personal attendance of accused. – 1. 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.

2. But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided."

"Chapter XXIV, General Provisions as to Enquiries and Trials - 317. Provision for inquiries and trial being held in the absence of accused in certain cases. – 1. At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

2. If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."

DIFFERENCES BETWEEN THE SECTIONS

1. Though there may be some overlapping areas between these sections, there also lies clear distinction between the same. Section 205 of the Code of Criminal Procedure would be applicable when the proceedings have begun before the Magistrate and charges are yet to be framed. An order issued under Section 205 Cr.P.C., exempting personal attendance of an accused would continue to be operational even after charges have been framed and till the conclusion of the trial.

Reference here is drawn to the Supreme Court judgment in TGN Kumar v. State of Kerala and Ors.1, an excerpt of which is produced below:

"Para 7. The Section confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during the trial. It is manifest from a plain reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence."

Section 317 of Code of Criminal Procedure would generally be applicable during the trial stage, i.e., after the charges have been framed.

S. 205 application can be filed at the time of first appearance of the accused claiming the exemption from appearance. In appropriate cases, the Magistrate can allow an accused to even make the first appearance through a counsel.2 On the other hand, S. 317 empowers the Court to dispense with the Personal attendance of the accused for proceeding with further steps in the case at stage of inquiries and trials.

2. Another major difference between the sections is that power under Section 205 could be exercised only by a Magistrate, whereas power under Section 317 could be used both by a Session Judge or a Magistrate.

CONTOURS OF APPLICABILITY OF THE SECTIONS

Both these sections are related to dispensing of the personal attendance of the "Accused" only. These sections do not apply to "Complainant". However, in so far as the Complainant is concerned, the personal attendance may not always be insisted upon if the Complainant is represented by an advocate, except in "private complaint" cases. In case of private complaint cases, presence of complainant is considered to be necessary if the complainant is not represented by an advocate. It is so because in such a situation, the complainant himself would be the "prosecutor", in absence of whom the case cannot proceed further. In Private complaint cases if the complainant has appointed an advocate, the court would generally not insist on personal attendance of the complainant, except when it would be necessary. In this regard, please refer to Kishor Bhai S/o Sognumal Matai v. State of Gujarat3 wherein the Gujarat High Court had discussed about Section 256 of Code of Criminal Procedure. It had been held in the judgment that, "Thus, Section 256 makes it clear that if the Complainant fails to appear, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day."

Footnotes

1 MANU/SC/1646/2011

2 Bhaskar Industries Limited v. Bhiwani Denim and Apparels Ltd. And Ors., MANU/SC/0489/2001

3 Criminal Miscellaneous Application No. 10625/2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.