SKILL 18: How to Draft an Application Seeking Exemption from
Personal Appearance of the Accused
Introduction
Section 228 of the Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023
provides a legal framework for individuals to request exemption from
personal appearance in court under specific circumstances.
One of the fundamental principles of criminal law is the right of the accused
to be present during the trial. However, the BNSS acknowledges that in
certain situations, the personal presence of the accused may not be
necessary. This article explores the legal provisions under BNSS that
govern such exemptions, examining relevant case laws and the court's
discretionary powers.
Legal Provisions under BNSS
Two key provisions in the BNSS —Sections 228 and 355—govern the
exemption of the accused from personal appearance in criminal
proceedings. These provisions strike a balance between the demands of
justice and the practical challenges faced by the accused.
Section 228: Magistrate’s Discretion to Dispense with Personal
Appearance
Section 228 grants magistrates the discretion to exempt an accused from
personal attendance, offering flexibility in legal proceedings. It serves as an
exception to Section 308, which generally mandates the accused’s
presence during the presentation of evidence.
● Subsection (1): Allows a magistrate to issue a summons while
permitting representation through a pleader if a valid reason exists.
● Subsection (2): Grants the magistrate the authority to direct the
accused’s attendance at any stage if deemed necessary.
Scope and Objective
This provision primarily addresses challenges such as geographical
distance and personal hardships, ensuring that justice is served without
unnecessary inconvenience.
Mandatory First Appearance
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The accused must be present at the first hearing to request exemption;
failure to comply may result in the application’s rejection.
Conditions for Granting Exemption
The court may impose certain conditions, such as:
● The pleader must not dispute the identity of the accused.
● The accused must be represented by legal counsel at all hearings.
● The accused should not object to the court taking evidence in their
absence.
● A commitment to appear whenever required by the court.
Section 355: Court’s Power to Proceed Without Accused’s Personal
Attendance
Section 355 allows the court to exempt an accused from personal
attendance during an inquiry or trial under specific circumstances.
● Subsection (1): If the court deems the accused’s presence
unnecessary or disruptive, it may permit proceedings in their absence
while ensuring representation through a pleader.
● Subsection (2): If necessary, the court may adjourn proceedings or
conduct a separate trial, provided reasons are recorded in writing.
Considerations before court
The court evaluates various factors, including:
● The severity of allegations
● The accused’s behavior during proceedings
● Practical difficulties due to distance
● Potential prejudice to the complainant
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Differences Between Sections 228 and 355
● Section 228 applies at the summons stage before charges are
framed.
● Section 355 applies after trial commencement.
● Both sections empower courts to grant exemptions even without a
formal request.
Liberal vs. Strict Approach in Granting Exemptions
● Liberal Approach: Courts tend to be lenient in cases involving
women, the elderly, sick individuals, factory workers, and daily wage
earners.
● Strict Approach: Applied in serious offenses, especially those
involving moral turpitude.
Precautionary Measures and Conditions for Exemption
Courts may require the accused to provide an undertaking detailing:
● Justifications for non-attendance
● Assurance that exemption will not prejudice the trial
● A commitment to appear when required
● Financial guarantees such as a bond or surety deposit
Case Laws
1. Puneet Dalmia v. CBI (2020)
○ Supreme Court granted exemption due to frequent travel
hardships.
2. Lily Begum v. Joy Chandra Nagbanshi (1994)
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○ Personal attendance not dispensed with due to serious
charges.
3. Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd (2001)
○ Magistrates have judicial discretion to grant exemptions in
summons cases.
4. Anita Rai v. State of Madhya Pradesh (2022)
○ Supreme Court exempted an accused due to substantial
geographical distance.
5. Cardinal Mar George Alencherry v. Joshi Varghese & Ors. (2022)
○ Court emphasized strict scrutiny for first appearance exemption
requests.
6. S. Nalini Jayanthi v. M. Ramasubba Reddy (2022)
○ Consideration of age and personal circumstances in granting
exemptions.
7. Ajay Kumar Bisnoi v. M/S. Kei Industries Limited (2015)
○ Balanced approach to exemption, preventing undue hardship to
either party.
Rewind!
The BNSS grants courts discretion to exempt an accused from personal
appearance based on individual case merits. The absence of a fixed list of
offenses for which exemptions are granted highlights the need for judicial
prudence.
The guiding principle remains that court procedures should not serve as
instruments of harassment. Where undue hardship outweighs the necessity
of physical presence, exemptions should be granted judiciously. Courts
must maintain a fair balance between the accused’s rights and the pursuit
of justice, ensuring an efficient legal system.
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- SAMPLE DRAFT -
IN THE COURT OF _____, _______
________ Vs ______
FIR No. ______
U/s: ____ IPC
P.S.: ______
APPLICATION FOR EXEMPTION OF THE PERSONAL APPEARANCE
OF THE ACCUSED
RESPECTFULLY SHOWETH:
1- That the above noted case is pending before this Hon’ble court and
is fixed for today.
2- That the accused made a telephonic call to his counsel and told
that he is _______ and is unable to attend this Hon’ble court today.
3- That the absence of the accused is neither deliberate nor
intentional but due to the aforesaid bona fide reason.
It is, therefore, most respectfully prayed that the personal appearance
of the above named accused may kindly be exempted for today.
Dated _____ Applicant
Through
counsel
_____, Advocate, ______
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