CrPC Section 317 – Provision For Inquiries And Trial Being Held In The Absence Of Accused In Certain Cases

Section 317 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) deals with circumstances under which the presence of the accused can be dispensed with during an inquiry or trial. The part of the criminal law is Indian in nature, takes due care to consider the rights of the accused yet has practicality in conducting the trial. Even without the presence of the accused, Section 317 allows the Court to proceed in certain cases. This law strikes a balance between the rights of the accused and the practicalities of conducting a trial.

Legal Provision CrPC Section 317

“Section 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.”

Simplified Explanation Of CrPC Section 317

CrPC Section 273 provides for the following:

Subsection (1)

Section 317(1) provides that a trial may be conducted in the absence of the accused if the Judge or Magistrate is satisfied, having regard to all the circumstances, that it is not reasonable in the interests of justice to require the person to be present. Such an order may be made at any time during the inquiry or the trial. The decision of the Judge or Magistrate must be accompanied by reasons.

The accused must be represented by an advocate for the Judge or Magistrate to proceed in the absence of the accused. The Judge or Magistrate can also decide to proceed in the absence of the accused if the latter are continually disrupting the Court process. Even though the Judge or Magistrate has resolved to proceed in the absence of the accused, the Judge or Magistrate can at any stage change their mind and summon the accused in person.

Subsection (2)

If the accused is not represented by any counsel, or if his personal attendance is necessary, then the Judge or Magistrate shall postpone the trial or commit for separate trial the case of the accused. As is the case with subsection (1), the reasons for the judgement must be recorded by the Judge or Magistrate.

Key Components Of CrPC Section 317

• Discretion of the Court: Section 317 vests discretion in the hands of the Judge or Magistrate to dispense with the personal attendance of the accused. The law presumes that in some circumstances, the attendance of the accused is not necessary for the continuation of the proceedings, provided it meets the conditions as mentioned under Section 317.
• Reasons to be Recorded: The Judge or Magistrate shall record reasons for his decision in writing to dispense with the attendance of the accused. This is very essential so that there are valid reasons behind the absence of the accused and that proceedings may be conducted without the presence of the accused based on proper grounds rather than being a result of whimsical decisions by the Courts.
• Continuous Obstruction by the Accused: In situations where the accused persists in disrupting the Court proceeding, Section 317 becomes the aid by which the Judge or Magistrate can prevent obstruction of justice by insisting that proceedings should not be delayed unduly because of the disruptive actions of the respondent.
• Flexibility to Recall the Accused: Even if a Court dispenses with the attendance of the accused at a certain stage, it still has the power to direct the attendance of the accused at any other subsequent stage if required. It helps make the procedure flexible so that the trial can go on smoothly, but the attendance of the accused could be recalled if that becomes necessary at a particular point.
• Trial Separately in Certain Cases: Under sub-section (2), if the accused is not represented by a pleader or if the Court considers his personal attendance necessary, the Judge or Magistrate has the power either to adjourn the proceedings or to direct a separate trial of that accused. In this manner, the whole proceedings would not be unduly prejudiced by non-representation in the Court or by personal appearance of the accused.

Rationale Behind CrPC Section 317

Section 317 is mainly to achieve a balance between the administration of justice and rights of the accused. Often, criminal trials consume a lot of time, and there can also be instances whereby the presence of the accused may not be required. There are also practical grounds on which the necessity to dispense with the attendance of the accused can be argued, viz:

• Medical Reasons: The accused may be unwell or unable to attend Court for health reasons, but their absence should not stall the entire trial.
• Security Issues: In high profile cases, there can be threats against the accused. In these cases their presence becomes a security issue.
• Disrupting the Proceedings: In case the accused continues to disrupt the Court proceedings, then his absence may be necessary to maintain order and progress in the trial.
• Convenience in Lesser Offences: In lesser offences where the presence of the accused does not affect the course of the proceedings, his presence is dispensed with to avoid causing unnecessary delay in the Court.

Landmark Judgements On CrPC Section 317

M/S. Bhaskar Industries Ltd vs. M/S. Bhiwani Denim & Apparels Ltd. Ors (2001)

In this case, the Supreme Court held the following with respect to CrPC Section 317:

• The Court held that Section 317 allows the discretion exercised by a magistrate to exempt an accused from the attendance of Court in any summons case, either for the whole duration of the proceedings or for some stages thereof. This discretion will be permissible if the magistrate finds that requiring the personal appearance of the accused would involve a significant hardship or injustice, and the benefits of such presence are far outweighed by such burdens.
• The Court made a clarification that this discretion should be exercised rarely, in exceptional circumstances. Such circumstances may include when the accused lives too far from the Court, faces physical limitations or has other valid reasons making his personal appearance unduly burdensome.
• For the smooth running of the trial, the Court laid down specific precautions that the magistrate was to observe in granting such an exemption. These include:
  • The accused should give an undertaking to the Court confirming he will not contest his identity as the accused.
  • That the accused should ensure that his advocate would appear in Court to represent him.
  • The accused should agree that evidence can be presented in his absence.
• The Court pointed out that Section 205(2) and the concluding part of Section 317(1) CrPC grants protection in case an accused takes advantage of this exception. In the event that his counsel fails to appear or cooperate with the proceedings, the magistrate retains the authority to require the personal attendance of the accused at any stage of the trial.
• The Court drew a correlation between Section 317 and Section 273 CrPC, which pertains to the taking of evidence. Ordinarily, evidence should be presented in the presence of the accused. Section 273 waives that and allows to take evidence in the absence of the accused as long as his counsel is present, and the accused is relieved of personal attendance.
• The Court held that Section 317 CrPC, gives magistrate jurisdiction for an efficient and fair administration of criminal justice without unduly hampering the accused. It was further held that the prime objective of the presence of accused is to enable speedy disposal of the trial. If this could be done without the presence of the accused, its attendance may be dispensed with at the discretion of the Court, especially in the summons cases.

Kajal Sengupta vs. M/S. Ahlcon Ready Mix Concrete Division of Ahluwalia Contract (India) Ltd. (2012)

In this case, the Court held that even when a magistrate grants an accused permanent exemption from personal appearance in a summons case under Section 317, the same does not exempt the accused from securing his bail from the Court.

The Court further held that though both obtaining bail and receiving exemption from personal appearance were intrinsically related, they are however separately processed and work on different facets of the trial. Although Section 317 allows the Court to dispense with the presence of the accused in person if legal representation is provided, it does not remove the requirement for the accused to obtain bail.

The Court clarified that the aim behind such permanent exemption from appearance is to minimise the burden and expenses that an accused sustains during the trial. However, such exemption cannot be termed a comprehensive order absolving the accused from appearing. It remains subject to the provisions of Sections 205(2) and 317(1) of the CrPC, which authorise the magistrate to command the attendance of the accused if so required.

Ajay Kumar Bisnoi vs. M/S.Kei Industries Limited (2015)

In this case, the Court held the following regarding CrPC Section 317:

• Section 317 empowers a Judge or Magistrate to dispense with the personal appearance of the accused and continue the inquiry or trial in his absence if they are satisfied that it is not necessary in the ends of justice.
• This discretion must be exercised judiciously with recourse to facts of a given case and considerations of justice and convenience to the accused.
• The Court should take into consideration certain facts, such as the distance between the residence of the accused and the Court, his business commitments, and any valid reasons of physical or other nature for his absence.
• The Court should ensure that by granting this exemption from personal attendance, there is no unnecessary harassment of the accused or prejudice to the complainant.
• The Court should ensure that the exemption is not misused for causing delay in the trail.

Challenges And Criticisms Of CrPC Section 317

While CrPC Section 317 allows for flexibility, this comes with several challenges. These are as follows:

• Potential for Misuse: The provision may be misused by accused persons to avoid personal appearance in Court under the guise of representation by a pleader.
• Concerns related to Transparency: The Court would record reasons, but whether such reasons are always subjected to adequate judicial scrutiny can be a cause for raising some concern.
• Prolonging the Trial: If the accused is absent and the proceeding is adjourned, then the length of trial will be elongated. This is against the principle of speedy trial.

Conclusion

Section 317 of the Code of Criminal Procedure, 1973 is an important tool for the smooth conduct of trials while respecting the rights of the accused. It gives the Courts discretionary powers to continue an inquiry or trial in the absence of the accused if the Court feels that it is necessary for justice to be delivered and records its reasons for doing so. This reflects the adaptability of the legal system in dealing with both practical considerations and the fundamental rights of individuals. Yet again, the provision should be made to operate judiciously, with due regard for the nature of the case, so that there is no miscarriage of justice.