Under this section a Magistrate issuing summons may dispense with personal attendance of the accused or may direct his personal attendance at any stage of the proceedings. But if a warrant has been issued under Section 204 against the accused person, his personal attendance cannot be dispensed with as the Magistrate has no power to do so.
While using power under Section 205, the Magistrate should take into consideration all the attending circumstances including family background, social status, customs etc. of the accused as also necessity of personal presence keeping in view the nature of the offence. He may dispense with the personal attendance of the accused but order him to appear by pleader.
Likewise, where the Magistrate has allowed the accused to appear by pleader, but thinks it desirable that the accused should be present in person for any particular purpose, such as for pleading to a charge or examination under Section 313 CrPC, he may pass an order accordingly.
The Magistrate should invariably dispense with the personal appearance of the accused in cases where such exemption is not likely to cause any harm to the complainant or the state or where the offence does not involve any moral turpitude.
The discretion conferred on the Magistracy by Section 205 should be exercised by the Magistrates even without a prayer having been made for exemption from personal appearance by the accused.
The section does not confer a right to the complainant to be heard before the Magistrate makes an order of exemption from personal appearance of the accused under this section. The Magistrate may, however, state reasons for granting exemption to the accused from personal appearance.
The Supreme Court in Usha K. Pillai v. Srinivas observed that the Court cannot dispense with the examination of the accused under Section 313 (b), CrPC even where the Magistrate has dispensed with the personal attendance of the accused under Section 205 (1) or Section 317 because personal attendance and examination of the accused under Section 313 (b) is mandatory.
As regards grant of exemption from personal appearance when the accused is a pardanashin woman, there is no any special provision in this section, but the Magistrate should use his discretion in their cases reasonably keeping in view the social status and custom as also the nature of the offence alleged against the woman.
Disallowing the application in respect of dispensing with personal appearance of the accused under Section 205, Cr. P.C., the Court below was of the view that the petitioner should have appeared in person and it was his first appearance inasmuch as he was not on bail. As such there was no question of allowing his application under Section 205, Cr. P.C. The High Court upheld the order of the Court below and dismissed the petition.
In Deva Nand Upadhyaya v. Union of India there were allegations of cheating and accepting illegal gratification against petitioner. But the petitioner did not respond to summons hence non-bailable warrant of arrest was issued against him for appearance with a view to securing his presence. Held, that order rejecting application for dispensing with personal appearance of petitioner on the ground that non-bailable warrant of arrest was already issued against him was proper.