The law provides that an accused/individual subject to trial may be exempted from criminal trial provided some certain conditions are met. Further this proposition in recent times has not only been applicable to Section 138, Negotiable Act (Cheque bouncing cases) but also to cases of a serious nature i.e. Warrant Cases and C.B.I Cases.
Section 205 read with Section 313 of the Criminal Procedure Code. Section 205 deals with exemption from appearance and Section 313 pertains to personal examination of the Accused. It is thus logical conclusion that if an accused is personally exempted from appearance in a summons case then the need for his personal examination is dispensed with as well.
Grant of Permanent Exemption: The Concept
In the first instance, it must be remembered that it is solely the discretion of the Magistrate to grant exemption from trial to the Accused.
However a single most important factor is that the Accused person should have regularly attended trial up to the point when the exemption is sought for. However when an accused makes even the first appearance through a counsel, he may be allowed to do so in certain situations. In other words the accused should have not been absconding from trial and should not have been declared a Proclaimed Offender by the Magistrate.
The Magistrate thus while considering such applications thus has to bear in mind the following:
(a) The nature of the crime alleged to have been committed.
(b) The conduct of the Accused which is of paramount importance.
Applicability of Exemption: Summons and Warrant Cases
Criminal matters are classified into Summons and Warrant cases. Summons cases are those involving offences less serious in nature in comparison to Warrant cases. Thus while there is no doubt that in summons cases the accused can be exempted from trial provided the Magistrate deems it to be fit and after exercising certain precautions which will be subsequently enumerated below.
The important question then is that of obtaining exemption from further trial in Warrants cases. It is trite in law that even in a warrant case it is within the power of the Magistrate to grant permanent exemption if circumstances justified such a course. Hence the mere fact that case on hand is a warrant case need not prevent the learned Magistrate from granting permanent exemption if otherwise petitioner is entitled to the same.
Process: Grant of Permanent Exemption
An application for exemption from trial along with an affidavit in support will contain the following undertakings:
- A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. Physical distance is one of the most important factors.
- An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning.
- An undertaking that he would not raise any grievance on that score at any stage of the case."
- That if at any stage of the proceeding, the petitioner is required by the trial Court; he shall have to appear in person.
- An undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and
- That a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence.
In the event of exemption not being granted by the Magistrate's Court, the Applicant has the option of filing a Revision Petition in the Sessions Court and if rejected , preferring an appeal in the concerned High Court. Even if it is still rejected the Applicant can take recourse by filing a Special Leave Petition (Criminal) in the Supreme Court .
A Special Leave Petition is that by which any order, decree, of a lower Court/Tribunal in India can be challenged in the Supreme Court of India(The final discretion however rests with the Supreme Court itself).
Normally in technical cases (Cheque Bouncing Cases), the Courts have been generous in granting Exemptions. Permanent Exemption can be granted even after summons is issued to the Accused. It must be however be noted that just because an order of Permanent Exemption from trial until further orders of the Court has been granted in favour of the Accused, he still has to produce bail- bonds in event of being let off on bail. Thus it must be remembered that grant of Exemption is not a blanket provision and is more in the nature of an interim order which does not conclusively determine the rights of the parties interse, in a criminal trial.