Sec.205, 313 and 317 Cr.P.C. - it can be used for not only condone the absence but also for conducting trial in the absence of trial - No court can refuse such petition unless his presence is necessary for answering charges and for answering sec . 313 examination when he was not represented by special vakalt holder under sec.205 Cr.P.C. - Hence transfer of a case due to medical ground from machalipatnam to Hyderbad not necessary - petition dismissed = Yarlagadda Venkata Krishna Rao The State of Andhra Pradesh through Public Prosecutor and another = published in judis.nic.in/judis_andhra/filename=3735

Sec.205, 313 and 317 Cr.P.C.  - it can be used for not only condone the absence but also for conducting trial in the absence of trial - No court can refuse such petition unless his presence is necessary for answering charges and for answering sec . 313 examination when he was not represented by special vakalt holder under sec.205 Cr.P.C. - Hence transfer of a case due to medical ground from machalipatnam to Hyderbad not necessary - petition dismissed =

Here is a case where the complainant and the accused are known to each other. 
Therefore, there is no need for the physical presence of the accused on each and
every adjournment and he can certainly request the Court to dispense with his
presence and to proceed with the trial in his absence and in the presence of his
counsel.
Even on the dates on which the cases are posted for
examination of accused under Section 239 Cr.P.C. or for framing of charges or
for examination of accused under Section 313 Cr.P.C. if some of the accused
could not be present, nothing prevents the trial Courts to proceed with such
examination of the accused in piece meal in the interests of quick disposal of
cases and also to avoid harassment to the co-accused.

When the accused is represented by a counsel and the physical 
presence of the accused is not required to proceed with the trial and when an
application is filed on behalf of the accused requesting the Court to proceed
with the trial in his absence but in the presence of his counsel, there is no
justification for any Court to refuse to proceed with the trial of the case
except in cases where the witnesses are required to identify the accused.
Section
317 Cr.P.C. is incorporated in the Code to enable the Court to proceed with the
trial even in the absence of sole accused or one of the accused. The Court can
record the same reason viz. filing of the application by the accused and proceed
with the trial in the absence of accused.  
Whenever physical presence of the
accused is required i.e. at the time of framing of charges, examination of accused under Section 313 Cr.P.C. etc. the Court may insist his presence if the accused is not represented by counsel on special vakalat under Section 205
Cr.P.C.  
The Courts are obligated to conduct trial in the presence of the
accused for the reason that no incriminating evidence shall be recorded behind
the back of the accused.

However, in this case the Magistrate is directed to
dispense with the presence of the accused during the stage of trial except on
the date of examination under Section 313 Cr.P.C. and on the date of
pronouncement of judgment, on a petition filed by the accused under Section 317
Cr.P.C.  Thus, this point is held accordingly.
IN THE RESULT, the criminal petition is dismissed giving liberty to the
petitioner to file a petition under Section 317 Cr.P.C. before the trial Court
to dispense with his presence on the dates on which he is unable to attend the
Court and on such application, the Magistrate shall proceed with the trial in
the absence of the accused but in the presence of his counsel.

THE HON'BLE SRI JUSTICE P.LAKSHMANA REDDY          
Criminal Petition No.7524 OF 2003

10-08-2006

Yarlagadda Venkata Krishna Rao

The State of Andhra Pradesh through Public Prosecutor and another

COUNSEL FOR THE PETITIONER: Mr.C.Praveen Kumar        

COUNSEL FOR THE RESPONDENT No.1: PUBLIC PROSECUTOR              
COUNSEL FOR THE RESPONDENT No.2: Mr.K.Venkata Rangadas          

:ORAL ORDER:  

        This Criminal Petition is filed under Section 407 Cr.P.C. seeking transfer
of C.C.No.167 of 2000 from the file of the II Additional Judicial Magistrate of
First Class, Machilipatnam to any other Court at Secunderabad.
        The relevant facts in brief are as follows:
        The second respondent herein filed private complaint before the police
alleging that the petitioner-accused committed the offence punishable under
Section 138 of the Negotiable Instruments Act (for short "the Act").  The
learned Magistrate forwarded the same to the police and the police after
investigation filed charge sheet against him and the learned Magistrate took the
case on file and commenced trial.
During the course of trial the petitioner has come forward with this petition
for transfer of the case from Machilipatnam to any other Court at Secunderabad
on the ground that he met with an accident and received grievous injuries and he
is unable to attend the Court at Machilipatnam and therefore the case may be
transferred to any other Court in twin cities.
        The learned counsel for the petitioner reiterated the contentions raised
in the petition.
        The learned Additional Public Prosecutor opposed the transfer of the case.
       
        The point that arises for determination in this petition is:
Whether  this is a fit case to   transfer C.C.No.167 of 2000 from the file of
the II Additional Judicial Magistrate of First Class, Machilipatnam to any other
Court at Secunderabad?
POINT:
It is not disputed that the offence took place within the jurisdiction of the
Court at Machilipatnam and the complainant and his witnesses reside at
Machilipatnam.  Merely because the accused received injuries and he is unable to
attend the Court at Machilipatnam, the case cannot be transferred to the Court
situate where the accused resides.  Admittedly the trial has been commenced and
there is no need for the accused to be present for each and every adjournment
and he can avail Section 317 Cr.P.C. by filing a petition before the Court to
proceed with the trial in his absence and in the presence of his counsel.
At this stage, the learned counsel for the petitioner submitted that the Courts
below are entertaining petitions filed under Section 317 Cr.P.C. only for
adjourning the cases and not for proceeding with the trial or enquiry of the
cases in the absence of accused even if he is represented by a counsel. If
really such is the practice prevailing in the trial Courts, it is to be
deprecated. When the accused is represented by a counsel and the physical 
presence of the accused is not required to proceed with the trial and when an
application is filed on behalf of the accused requesting the Court to proceed
with the trial in his absence but in the presence of his counsel, there is no
justification for any Court to refuse to proceed with the trial of the case
except in cases where the witnesses are required to identify the accused.
Section 317 Cr.P.C. is incorporated in the Code to enable the Court to proceed with the
trial even in the absence of sole accused or one of the accused. The Court can
record the same reason viz. filing of the application by the accused and proceed
with the trial in the absence of accused.  
Whenever physical presence of the
accused is required i.e. at the time of framing of charges, examination of
accused under Section 313 Cr.P.C. etc. the Court may insist his presence if the
accused is not represented by counsel on special vakalat under Section 205
Cr.P.C.  The Courts are obligated to conduct trial in the presence of the
accused for the reason that no incriminating evidence shall be recorded behind
the back of the accused.
In other words, the accused is given a right to insist
for his presence at the time of recording evidence against him. 
 If the accused
files an application waiving his right to be present at the time of recording
evidence against him and requesting the Courts to proceed with the trial in his
absence no court can refuse to proceed with the trial in his absence unless the
identification of the accused in Court by the witnesses is necessary. 
If the
trial Courts fail to avail the enabling provision contained in Section 317
Cr.P.C. it affects the quick disposal of cases and also causes lot of
inconvenience to the witnesses and also the co-accused if any.  For example, in
a case where number of persons are arrayed as accused, one of them or some of 
them may remain absent for valid and sufficient reasons on several occasions and
if the Court does not proceed with the trial of the case on account of the
absence of one of the accused, the Court may not be able to dispose of such case
at the earliest.
Even on the dates on which the cases are posted for
examination of accused under Section 239 Cr.P.C. or for framing of charges or
for examination of accused under Section 313 Cr.P.C. if some of the accused
could not be present, nothing prevents the trial Courts to proceed with such
examination of the accused in piece meal in the interests of quick disposal of
cases and also to avoid harassment to the co-accused.  The trial Courts are
advised to make use of the enabling provision contained in Section 317 Cr.P.C.
for quick disposal of cases and to avoid unnecessary adjournments.
Here is a case where the complainant and the accused are known to each other. 
Therefore, there is no need for the physical presence of the accused on each and
every adjournment and he can certainly request the Court to dispense with his
presence and to proceed with the trial in his absence and in the presence of his
counsel.
        Hence, I do not find any force in the contention of the learned counsel
for the petitioner.  However, in this case the Magistrate is directed to
dispense with the presence of the accused during the stage of trial except on
the date of examination under Section 313 Cr.P.C. and on the date of
pronouncement of judgment, on a petition filed by the accused under Section 317
Cr.P.C.  Thus, this point is held accordingly.
IN THE RESULT, the criminal petition is dismissed giving liberty to the
petitioner to file a petition under Section 317 Cr.P.C. before the trial Court
to dispense with his presence on the dates on which he is unable to attend the
Court and on such application, the Magistrate shall proceed with the trial in
the absence of the accused but in the presence of his counsel.

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