What is the difference between Section 205 and Section 317 of Cr.P.C. for filing of the application to dispense with personal attendance? Can it be used for accused only or for complainant also? Suppose some complainant or accused is unable to attend the court on every adjournment, more so when he lives far away from the jurisdiction court, can they file application to dispense with the personal attendance until disposal of the case? If so, under which section – whether Section 205 or Section 317 of Cr.P.C?
Answer: For proper appreciation of the legal provisions, let me first reproduce the two sections mentioned by you, namely, Section 205 and Section 317 of Criminal Procedure Code (Cr.P.C.):
“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.”
“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.”
Section 205 Cr.P.C. is in CHAPTER 16 which deals with Commencement of Proceedings Before Magistrates. On the other hand, Section 317 Cr.P.C. is in CHAPTER 24 which deals with General Provisions as to Enquiries and Trials.
Though there may be some overlapping between these sections, generally speaking Section 205 Cr.P.C. would be applicable when the proceedings have begun before the Magistrate and charges are yet to be framed, though I may hasten to add that an order issued under Section 205 Cr.P.C. exempting personal attendance of an accused may continue to be operational even after charges have been framed and till the conclusion of the trial.
On the other hand, Section 317 Cr.P.C. would generally be applicable during the trial stage, i.e., after the charges have been framed; however, since Section 317 specifically uses the words “any stage of an inquiry or trial”, it should be obvious that this provision can be used even during inquiry stage which is prior to framing of charges. Thus, there is some overlapping between the two sections.
One major difference between these sections is that power under Section 205 can be exercised only by a Magistrate, whereas power under Section 317 can be used both by a Session Judge (including Additional or Assistant Sessions Judge) or a Magistrate.
Both these sections relate to dispensing with the personal attendance of the “accused” only. These sections cannot be applied to “complainant”.
However, generally speaking, in so far as the complainant is concerned, his personal attendance may not always be insisted upon if he is represented by an advocate, except in a (private) complaint case. For example, see the following sections of Cr.P.C.:
“249. Absence of complainant.— When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.”
“256. Non-appearance or death of complainant.— (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution 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.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”
Here, Section 249 relates to trial of warrant cases when the proceedings have been instituted upon complaint (and, thus, not on the basis of a charge-sheet submitted by the police under Section 173 Cr.P.C.). Likewise, Section 256 relates to trial of summons cases, which are basically cases where the maximum imprisonment can be up to 2 years; this clearly implies that these are generally for non-cognizable cases, wherein even if the police has submitted a charge-sheet the same is considered as “complaint” [see, Explanation to Section 2(d)]. Therefore, Section 256 also deals with complaint cases.
I have not come across any other sections in Cr.P.C. which speak about the “absence” of complainant or about “personal attendance” of complainant on every date, except these two sections mentioned above which relate to complaint cases. Thus, it should be obvious that if a criminal case has been instituted on the basis of a police report (i.e., charge sheet under Section 173 Cr.P.C.), the attendance of the complainant may not be necessary on all dates, except when the evidence of the complainant is required to be recorded or for some other special reasons.
However, in so far as (private) complaint cases are concerned, the presence of complainant may be considered necessary if he is not represented by an advocate. This is so because in such a situation, the complainant himself would be the “prosecutor”, in the absence of whom the case cannot proceed further. But, even in complaint cases, if the complainant has appointed an advocate, the court will generally not insist on the personal attendance of the complainant except when it may be necessary. So, where an advocate has been appointed by the complainant in a complaint case, the complainant can generally get exemption from personal attendance, except when it is found to be necessary.
If the complainant or accused is living at a far-away place from the court, then it is an additional ground to seek exemption from personal attendance, though it is not necessary that the court will always agree to dispense with the personal attendance on this ground alone. Generally, people also give reasons of sickness, medical problems, personal / family problems, etc., to name just a few reasons, to seek exemption from personal attendance.
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