Presence before the Court

Order 3 Rule 1 of Civil Procedure Code states as follows:-

"Any appearance application or act in order to any court required or authorised by law to be made or done by a party in such court may except where otherwise expressly provided by any law for the time being in force be made or done by the party in person or by his recognized agent or by a pleader appearing applying or acting as the case may be on his behalf.

Provided that any such appearance shall if the court so directs be made by the party in person."

Order 3 rule 2 of Civil Procedure Code speaks of recognised agents.

As regards criminal law, only the accused or his pleader shall appear in the case.

Thanks Mr. Krishnaa for the prompt reply.

So, does that mean if 10 persons are accused in one case, they can be presented by a single pleader??

Is there any exception in a defamation case filed, that the accused is to be present personally on each hearing

Also, does the court possess power to enforce the presence of all the accused at all the hearings..?

dear pooja

yes,  a pleader can appear before the court for any number of accuseds / defendants/  respondents as the case may be.. there is no such bar. all accuseds / respondents / defendants may  have one pleader.

 in civil cases order 3 of c.p.c. is elaborative on the issue concerning with representatives..

further in criminal cases too the court may, at its discretion, dispense with the personal appearance of the accused person(s).  plz see section 205 of cr.p.c.

in defamation cases, generally courts grant exeption from personal apperance of accuseds..

regards,

sandeep jindal, advocate,

 new delhi #9999668878.

In civil proceeding the POA can appear b4 court & in criminal proceeding presence of accused is compulsary.As per Cr.P.C.Evidence should be taken in the presence of accused.In special circumstances court may dispense with personal appearance of the accused.  sec.205 of cr.p.c

Thanks Mr. Sandep and Mr. Sunil for your replies.

So, can it be concluded that personal appearance of the accused is compulsary in criminal cases in general and S 205 of CrPC is an exception to that...

Presence before the Court:

Dear Ms. Pooja,

In Reference of your query, I would say that under the Code of Civil Procedure, 1908, not only the Defendant/Respondent can enter their appearance through Recognized agent or by pleader, but the same provision is applicable to the Plaintiff/Petitioner, because if you go through the provision of Order III, Rule 1 and 2 of the Code of Civil Procedure, 1908, then you can see that in this provision the word “a party” and “the party” has been used. Meaning thereby, this provision is applicable to both the parties whether Plaintiff or Defendant, they can enter their appearance or plead their case through a recognized agent or a pleader.

See Order 3, Rule 1 and 2 OF Code of Civil Procedure, 1908.

ORDER III

RECOGNIZED AGENTS AND PLEADERS

1. Appearances, etc., may be in person, by recognized agent or by pleader-

Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provide that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognized agent

The recognized agent of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

I can say that in general practice of the Civil Courts, any of the party is not required by the court, unless there is any specific purpose, like production of original documents, admission/denial thereof, leading the evidence. Etc.    

This practice is just contrary under the Criminal Jurisdiction of the courts. I would like to confine myself only upto query involved herein for discussion.

You conclude in the last as per opinion given hereinabove as “So, can it be concluded that personal appearance of the accused is compulsory in criminal cases in general and S 205 of CrPC is an exception to that...  

But this is not the right conclusion because section 205 of Criminal Procedure Code, 1973 does not provide any exception as you have concluded. However section 205 falls under Chapter XVI of the Code of Criminal Procedure and this chapter laid down the procedure that as to how, the proceedings would be commenced before the Magistrate. This section gives the power to Magistrate to dispense any of the accused from personal appearance. Meaning thereby the provision of this section is applicable to the proceedings which are pending before the any Magistrate. This section i.e. 205 does not empower the Judge or Session Judge to dispense any of the accused from personal appearance, because this section lays down the procedure of commencement of the proceedings before the Magistrate and in the language of the section the word “Magistrate” is specifically used.

In practical, to take the benefit of this section, the accused has to move an application before the Magistrate, stating therein, that as to why and under what circumstances, he/she is unable to appear and attend the proceedings on each and every date of hearing. If the magistrate is satisfied with the grounds stated in the said application, then the magistrate may dispense the accused from personal appears and permit the accused to appear through the pleader/advocate.

Section 205. Magistrate may dispense with personal attendance of accused.

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of' the accused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of' the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

Now come up to the provision if the case is pending before the Session Court.

If any of the criminal proceedings are pending before the Session Court, then the same benefit can be taken i.e. exemption from the personal appearance, under the Chapter XXIV, which laid down the “General Provision as to Inquiries and Trials”. You can move the same application stating the grounds for dispending the accused from personal appearance before the Session Court, under section 317 of Criminal Procedure Code, 1973. This section empowers the both i.e. Judge and Magistrate to dispense the accused form personal appearance because in this section the word “the Judge or Magistrate” has been used. Therefore this section is applied to both the proceedings pending before the Magistrate or a Session Judge.

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 and 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.

I hope now you would reach at the right conclusion.

Thanking you.

Thanks for the elaborative answer, Mr. Sharma