Delhi High Court exempts 75-year-old accused of sexual assault from physical appearance; Directs counsel to appear physically

delhi high court

Delhi High Court: A petition was filed under Articles 226 and 227 of the Constitution read with Section 482 of the Criminal Procedure Code (CrPC) was filed on behalf of petitioners seeking appeal/repeal/revision/alteration/modification/setting aside, in full or in part, of the order dated 08-06-2023 passed by Principal District & Sessions Judge (Central), Tis Hazari Courts, Delhi. Swarana Kanta Sharma, J., sets aside the impugned order insofar as it contains directions qua physical/virtual presence of petitioner 1 and directed petitioner 1 to remain present on every date of hearing virtually i.e., through video-conferencing before the Trial Court and the counsel to remain present physically before the Court.

Petitioner 1, who is 75 years of age, is an accused in case registered under Sections 376 and 506 of the Indian Penal Code, 1860 (IPC) which is pending trial before the Court of Additional Sessions Judge, Central, Tis Hazari Courts, Delhi. Petitioner 1 herein had sought transfer of the case from the court of the ASJ by way of Transfer Petition wherein the grievances of petitioner 1 were summarized. However, the impugned order dated 08-06-2023 was passed whereby the District Judge directed the petitioner to attend the Trial Court proceedings through physical or virtual mode as per his health conditions, but when appearing virtually, he would supply supporting medical documents. Thus, in a nutshell, the petitioners are seeking permission to appear virtually due to his health conditions and age before the Trial Court without any conditions as stipulated in the order dated 08-06-2023, and the order thereby be set aside accordingly.

The Court noted that as a fundamental principle of criminal law as enumerated in Section 273 of CrPC, the trial of criminal case must take place in the presence of the accused which is essential to ensure fairness to both the accused and the victim. Sections 205 and 317 of CrPC incorporates provisions that grant the courts, the discretion to exempt an accused from personal appearance. The decision as to whether exemption from personal appearance should be granted to an accused or not depends exclusively on the basis of facts and circumstances of each case and the discretion exercised by the Courts in this regard is to be done after taking into account several factors which may include nature of allegations, conduct of the accused, place of residence of the accused and the distance to be travelled for the purpose of physical appearance before the Court, physical condition of the accused, necessity for personal appearance, et al.

The Court further noted that the law also mandates that while granting exemption to an accused, the Courts must also ensure that such liberty is not misused by the accused, by imposing appropriate conditions. A bare perusal of office order dated 05-06-2023 regarding ‘Directions regarding Hybrid Hearing in Delhi District Courts issued by the Hon’ble Full Court, High Court of Delhi’, directs all the District Courts in Delhi to allow ‘any of the parties’ or their counsels to appear through ‘hybrid/video-conferencing mode’ during ‘any Court proceedings’ without there being any prior request made to the Court even applicable to an accused who is facing criminal trial in a case involving charge under Section 376 of IPC.

The Court opined that while it is important to uphold the principles of justice and fair trial, it is equally vital to give due consideration to factors such as age and health conditions of the accused. In such cases, if the trial can proceed effectively with the accused remaining present before the court through alternative means such as videoconferencing and representation by legal counsel, the court should be flexible in considering prayers made to this effect by the accused. The courts should strive to strike a balance between the rights of accused and the practicalities of the legal process. Imposing conditions that compel an elderly accused, such as the 75 years old accused in the present case, to remain present physically before the court on every date of hearing rather than allowing him to join the court proceedings virtually, and to produce medical certificate of illness every time when he wishes to appear virtually, in the given facts and circumstances of the case, will be impractical and unjust.

Thus, in cases where appearing before the Court and joining the proceedings in a criminal trial through virtual modes do not compromise the integrity or fairness of the trial, the courts should be flexible in embracing modern technology and allowing virtual appearances.

The Court laid following directions:

  1. The petitioner 1 shall remain present on every date of hearing virtually i.e. through video-conferencing before the Trial Court and counsel on behalf of petitioner no. 1 will remain present physically before the Court.

  2. This Court has noted that it is a criminal trial and the identity of the accused is of utmost importance. Only because the accused is appearing through video-conferencing he will not dispute his identity during cross-examination, etc., or at any other stage of trial since he himself is seeking exemption from personal appearance in physical form and requests that he be allowed to appear through Video-conferencing.

  3. The petitioner no. 1 will not seek adjournment on any date of hearing, except in most unavoidable circumstances regarding which an application in writing will be moved by his counsel before the Trial Court.

  4. The accused will not be required to furnish a medical certificate of illness on every date of hearing since he has been permitted to appear through video-Conferencing.

  5. In case the Trial Court will be of the opinion that the physical presence of petitioner no. 1 is essential, for some reasons which shall be recorded by the concerned Court, such an order regarding the dates on which he will be required to appear in person before the Trial Court will be passed in presence of the learned counsel for petitioner no. 1 or petitioner no. 1 himself or anyone present on his behalf at least three days prior to such date fixed for his appearance before the Court.

  6. In case petitioner no. 1 has difficulty in appearing before the Court due to his any physical disability, the same will be taken into account by the Trial Court.

[S. Jaitely v State, 2023 SCC OnLine Del 5551, decided on 01-09-2023]

Advocates who appeared in this case :


Ms. Nandita Rao, ASC (Criminal) for the State along with Mr. Amit Peswani, Advocate and with SI Ranvijay, P.S. Lahori Gate

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