When Director/Business Owner may be exempted from Personal Appearance during Criminal Trial?
Occupiers of factories, Managing Directors or Directors of Hotels, Malls and other business/industrial entities are generally made a party in a criminal case based on principle of “Vicarious Liability” when an accident or untoward incident occur in their business/industrial entity including cases U/Sec. 138 of The Negotiable Instruments Act, 1881 and become liable to personally appear before a Magistrate for criminal trial or to seek bail after appearing one time in Court. In this article, we will discuss the legal remedies available for seeking permanent/date specific exemption from personal appearance in Criminal Trial.
Hon’ble Bombay High Court in the case of Shri Anil V. Salgaonkar V/s. Union of India (Central Government) passed in Criminal Misc. Application (Main) No.142 of 2007, has referred to the landmark Judgments of the Apex Court in the case of M/S. Bhaskar Industries Ltd vs M/S. Bhiwani Denim & Apparels Ltd. [Appeal (Crl) 858 of 2001] wherein certain directions have been issued which are contained in para 10 as under:
(i) Ordinarily, the Court should be generous and liberal in exercising powers under sections 205 and 317 of the Code* and grant exemption to the accused from personal appearance unless presence is imperatively needed or becomes indispensable. While considering the application for exemption, the Court should also bear in mind the nature of accusations and prejudice, if any, likely to be caused to the prosecution or the complainant, if personal attendance of the accused is dispensed with or to the accused if personal attendance is insisted upon, as case may be.
(ii) If an accused makes even the first appearance through a counsel, he may be allowed to do so.
(iii) If an accused is seeking permanent exemption in a case, the Court, while dealing with such application, should take precautions that the accused gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case. A counsel on his behalf would be present in the Court on all dates of hearings. He has no objection for recording a plea on his behalf of a counsel and in taking evidence in his absence.
Again in case of Shiv Kumar Jatia vs State Of NCT Of Delhi [Criminal Appeal No. 1263-1264 of 2019] Apex Court have reiterated the judgement of M/S. Bhaskar Industries Ltd.
How to apply for Exemption from Personal Appearance:
1. Apply to Trial Court by submitting an Affidavit through one’s counsel stating:
a) The justifications/reasons unable to personally appear like residing far off place from place of Trial Court, busy in various business assignments, frequently visiting abroad, self-sickness or other family problem(s).
b) That I would not dispute my identity as the particular accused in the case.
c) That a counsel on one’s behalf would be present in the Court on all dates of hearings.
d) I have no objection for recording a plea on my behalf of a counsel and in taking evidence in my absence.(U/Sec. 251 of Code*)
2. In case the Trial Court is lower than the Session Court and Magistrate rejects the application, then one may apply afresh U/Sec. 397 either to Session Court or High Court.
3. In case Session/High Court also rejects the application made U/Sec. 397 of Code*; then last remedy is available for apply to High Court U/Sec. 482 of Code* for revision.
* Code of Criminal Procedure, 1973