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Laws regarding the presence of an

accused during a criminal trial and
appointment of power of attorney -
iPleaders
13-17 minutes ⋮ 9/6/2021

Image source: https://bit.ly/3gTcky6

This article is written by Anushka Singhal, from Symbiosis

Law School, Noida. In this article, she discusses whether the
presence of an accused is necessary for a criminal
proceeding. She also tries to throw some light on the
appointment of power of attorney by an accused.

Introduction
The Indian legal system follows the principle of ‘innocent until
proven guilty’. Guilt is not presumed in any case until the trial
concludes. We often interchangeably use the words like
accused, convict, and prisoner. There is a stark difference
between these three words. An accused is a person on whom
there is a suspicion of committing a wrong. When his wrong is
proved in a court of justice, he becomes a convict, and when
his imprisonment terms start he is called a prisoner. The rights
of all these three persons vary. An accused has certain rights
before, during, and after the trial. Right to be present during
the trial is one of them. Let us discuss if the presence of an
accused is necessary during a criminal trial and if he can
appoint a power of attorney.
Provisions for the presence of an
accused during a criminal trial in India
The substantive part of criminal law is dealt with by the Indian
Penal Code,1860 while the procedural part is dealt with by the
Code of Criminal Procedure,1973. Thus, the provisions
regarding the presence of an accused during a criminal trial
are laid down in the Code of Criminal Procedure. Going by the
ideals of a ‘fair trial’ an accused should be present at the
proceedings as it will give him a chance to clarify his point
whenever the prosecution is taking the case to the wrong side.
However, the Code of Criminal Procedure does not make the
presence of an accused mandatory at a criminal proceeding.
Section 317 of CrPC lays down that a trial can be held without
the accused if the judge or the magistrate is satisfied in the
following cases:

1. If the personal attendance of the accused is necessary for

the interest of justice.
2. If the accused disturbs the court proceedings.
3. If there is a pleader of the accused, then he may be
exempted from attending the proceedings.

The Section lays down that if the presence of the accused is

extremely necessary for the case and the accused cannot be
present on that particular day, the Court may adjourn the
proceedings.

Section 273 of the Code lays down that all the evidence
should be admitted in the Court in the presence of the
accused and if the accused is excused from the attendance in
the Court, then his pleader must be present at the
proceedings. While Section 205 of the CrPC lays down that
the magistrate may dispense with personal attendance of an
accused. A magistrate can allow the accused to be
represented by a pleader and the same magistrate can later
call upon the pleader before the Court as and when he
desires. Section 205 and Section 317 of the CrPC somehow
overlap but there is a difference between the two. Let us
attempt to lay down some differences between the two.

Difference between Section 205 and

Section 317 of CrPC
The provisions of these two Sections are different and are not
completely the same. Under Section 205 of the CrPC will be
applicable when the proceedings have begun under the
magistrate and charges are yet to be made. An absence
granted under this Section would continue up to the end of the
trial. In TGN Kumar v. State of Kerala and Ors.,(2011) the
Hon’ble Supreme Court held that the powers granted to the
magistrate under this Section are discretionary in nature. The
Court has to examine whether the presence of the accused
would serve any important function to the court or would his
absence hamper the proceedings of the case.

On the other hand, Section 317 comes to play during the trial.
It will be invoked when the charges have been framed while
Section 205 is invoked even before that. Section 205 can only
be exercised by a magistrate while Section 317 can be
exercised both by the magistrate and the sessions judge.
Thus, these two Sections are different when it comes to the
procedural aspect and the similarity is in the purpose i.e. the
acquittal of the accused.

Approaches for exemption from

attending criminal proceedings
The courts adopt two approaches while granting an excuse to
a person from attending criminal proceedings. The liberal and
strict approach is generally adopted by the courts while
granting an exemption. The magistrates can also put any
number of conditions as they wish before granting an
exemption. Courts can ask an accused to pay a certain sum of
money for being exempted from presence in the court, they
can ask him to serve an undertaking or impose any other
condition.

Liberal or generous approach

Indian courts have generally adopted a generous approach in
granting exemption to the accused. In the case of Halen
Rubber Industries v. The State of Kerala,(1972) it was held
that in all trivial and technical cases involving women, elderly,
sickly, daily wage workers, factory workers, business people
or industrialists should be excused from their attendance in
the court. The Hon’ble Court held that one should exercise
discretion liberally in such types of cases. The Court also
takes into consideration the hardships caused due to travel to
the court on an almost daily basis. Exemptions have been
granted to the people working abroad and being accused in
India. The courts do not grant exemption when they feel that
the proceedings are being affected and the case demands the
presence of the accused. Let us discuss all such situations
with the help of case laws-

Puneet Dalmia v. CBI (2019)

In this case, the appellant was accused under the Prevention

of Corruption Act, 1988. The appellant had to travel every
Friday from Delhi to Hyderabad to attend the hearing of his
case at the trial court. He sought an exemption from the
magistrate under Section 205 of the CrPC which was rejected
by the trial court. The application was opposed by the
respondent CBI and the trial court rejected his application for
exemption. The appellant appealed against the impugned
orders to the Delhi High Court which further rejected his
contention. The case went to the Supreme Court, the Court
held that the appellant should be granted an exemption from
coming to the court. It held that the presence of the accused
should not be for the purpose of just seeing him in court. His
advocate should be present each time but he can be granted
an exemption owing to the hardships faced by him.

Sarath S v. State of Kerala (2019)

In this case, the applicant was employed in Sharjah and he

came to India very little as he was not granted leave easily by
his employer. A case was registered against him in India. He
came to know of the case when the warrant reached his
residence in India. As he could not come to India on such
short notice, he filed an exemption application under Section
205 of the CrPC. The trial court rejected his application only
on the grounds that as the warrant was issued already,
nothing could be done. The case went on appeal to the High
Court which held that pendency of warrant cannot be the
ground for refusing the request under Section 205 Cr.P.C. if
appropriate grounds are made out. The Court held that since
the appellant was stationed outside India and could not come
due to his employment, he can be exempted from appearing
before the court.

Strict approach
A strict approach is applied in those cases where there are
serious allegations against an accused. Rape cases, murder
cases and other serious allegations under the Indian Penal
Code would lead to the denial of an accused’s exemption
application. A subjective approach is taken in deciding cases
in which the strict rule will apply and in cases where a
generous approach will be taken. For example, in the case of
Ajay Kumar Biisnoi v. M/S Kei Industries, (2015) the Court laid
down that the order of the magistrate in the exemption cases
should be as such that it does not cause any prejudice to the
complainant and any unnecessary hardship to the accused.
Following are some of the cases in which the Hon’ble Courts
adopted a strict approach-

Lily Begum v. Joy Chandra Nagbanshi (1993)

In this case, the accused was charged under Section 376,

417, and 506 of IPC. The petitioner went to the High Court
and asked it to quash the proceedings against him. The High
Court did not quash the proceedings but it asked the Trial
Court to exempt him from coming to the Court under Section
205 of the CrPC. This exemption was challenged before the
Supreme Court which held that an exemption cannot be filed
in such cases of grave nature. It held that if such privilege is
granted in cases of this type then people may lose their
confidence in the justice system.

According to Section (1-A) of the Powers of Attorney Act,

1882 a power of attorney “includes any instrument
empowering a specified person to act for and in the name of
the person executing it.” Power of attorney is based on the
principle, ‘Qui facit per alium facit per se’ i.e. he who acts
through others, acts through himself. Through a power of
attorney, a person appoints another person to act in his name
and is liable for all such acts committed by that person. The
Powers of Attorney Act is a short Act with 5 Sections that lays
down the provisions regarding definition, execution, payment,
the deposit of instruments and power of attorney of a married
woman.

Appointment of power of attorney by

an accused
Section 2 of the Powers of Attorney Act which lays down the
provisions for the execution under power of attorney cannot
override any special law which states that a particular act has
to be done by a particular person. A magistrate can exempt
any accused from attending the criminal proceedings and
allow only his counsel to appear on his behalf. Section 303 of
the CrPC lays down that any accused has a right to be
presented by a pleader of his own choice. A pleader is defined
under Section 2(q) of the same Act which says that a pleader
can be a person authorised under law or can be any other
person appointed with the permission of the court.

Whether power of attorney can come under the ambit of such

a ‘pleader’ is a question of fact in each case. The case of T.C.
Mathai & Anr vs. The District & Sessions Judge (1999) is a
good authority on the question of whether an accused can
appoint a power of attorney or not. In this case, an agent of a
couple settled abroad wanted to appear before the court on
their behalf. His request was declined by the Court and the
Court held that “An agent with a power of attorney to appear
and conduct judicial proceedings, but who has not been so
authorized by the High Court, has no right of audience on
behalf of the principal, either in the appellate or original side of
the High Court.”

Also, there have been questions on whether a lawyer can

appear in the court in his personal capacity as a power of
attorney and even the courts have allowed a non-legal person
who is a power of attorney to be appointed as a pleader for an
accused. Some cases have even denied the right of the
audience to such power of attorneys. Let us discuss all such
cases.

Brenda Barbara Francis v. Adrian Mirinda (2016)

In this case, an advocate approached the Kerala High Court in

the capacity of a pleader and not as an advocate. In normal
circumstances, the rules governing excused attendance and
appointment of a pleader are governed by the CrPC, and also
the courts are bound by the precedence of the T.C. Mathai
case but in these circumstances, the Court held that the
Advocates Act,1961 would come into play. There is an
embargo for an advocate under Section 32 of the Advocates
Act and therefore the advocate was not allowed to present as
a power of attorney.

Harishankar Rastogi v. Girdhari

Sharma and Anr. (1978)
In this case, the appellant requested the court to appoint a
person who was not an advocate to handle his case and said
that he did not want the help of the amicus curiae appointed
by the court. The Hon’ble Court after going through the
provisions of the Advocates Act and the Code of Criminal
Procedure held that it is upon the discretion of the court to
appoint such a person. The Court can even appoint such a
person and later halfway through the case remove him. Thus
when the pleader is a non-advocate and does not have the
legal power of attorney it is the discretion of the court that
comes into play.
Conclusion
We have ensured that an accused has certain rights. By
providing the right of exemption we have ensured that we live
up to the spirit of ‘innocent until proven guilty.’The Courts have
tried to strike a balance between the rights of an accused and
a victim by adopting two kinds of approaches while dealing
with an application for exemption. The rules regarding power
of attorney have been laid down and it appears that when it
comes to legal proceedings, a power of attorney does not
have many rights. The above cases illustrate the same and
have even laid down that a power of attorney can also not be
an audience.

References
https://corporate.cyrilamarchandblogs.com/2021/07/can-an-
accused-be-granted-exemption-from-personal-appearance-
understanding-section-205-and-317-of-the-code-of-criminal-
procedure-1973/#_ftn11
https://www.lawweb.in/2013/05/accused-can-not-appear-in-
court-through.html
https://www.mondaq.com/india/court-
procedure/721810/dispensing-attendance-in-person-of-
accused-differences-between-section-205-and-317-of-code-
of-criminal-procedure-1973
http://mja.gov.in/Site/Upload/GR/Title%20NO.40(As%20Per%2
https://www.pathlegal.in/Appearance-Of-Accused-Through-
Power-Of-Attorney-Holder-Is-Di-blog-2385410

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