Exemption to an accused from personal attendance during trial.

Section 205 Cr.P.C. and Section 317 Cr.P.C. which are relevant provisions for exemption areas under:

“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.

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.”

Continue reading “Exemption to an accused from personal attendance during trial.”

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What is a colourable legislation?

Doctrine of colourable legislation

The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. Continue reading “What is a colourable legislation?”

Criminal trial in India: Presence of accused on each date of hearing.

Requirement of presence of accused on
each date of hearing during criminal trial

In an offence entailing punishment of more than two years, requirement of presence of accused in criminal trial, if mandatory?

Effect of changes in technology on Criminal Trial:

The situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation?

Criminal trial of summons case:

The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is “summons cases”. It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a “summons case”. Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help?

Criminal trial in warrant case:

Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of Session can also exercise such a right to put in written statements [Section 233(2) of the Code]. It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth.

A pragmatic and humanistic approach is warranted in regard to such special exigencies. The word “shall” in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage, the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner.

[Source: Inspector of Customs v. Yash Pal, 2009(4) SCR 118: 2009(4) SCC 769: 2009(3) JT 577: 2009(3) SCALE 590: 2009 CrLJ 2251: 2009(2) SCC(Cr) 593: 2009(2) Crimes 108(SC): 2009(236) ELT 3. (per K.T. Thomas, J., for himself and S.N. Variava)]

However the minority opinion of court was delivered by R.P. Sethi, J. who expressed his dissenting views as:

Looking at the history of the section, the various conflicting pronouncements of the High Courts in the country and authoritative pronouncements of this Court by Three Judge Bench, the Law Commission recommended the necessity of examination of the accused personally. The recommendation of the Law Commission were accepted by the legislature. The incorporation of the provision necessitating the examination of the accused personally, undoubtedly is the reflection of a conscious decision, which the legislature took in its wisdom.
I am, therefore, convinced that Section 313 of the Criminal Procedure Code does not envisage the examination of the counsel, in place of the accused and the law laid down by this court by three Judge Bench in 1969 and later on followed in 1973, does not require any reconsideration, particularly by a Bench of the same strength and of a coordinate jurisdiction.