Indira Jain, J.

By this criminal application, applicants are challenging the order dated 11/1/2011 passed by the learned Judicial Magistrate, First Class, Khamgaon below Exh. 154 and order dated 28/1/2011 below Exh. 163 in Summary Criminal Case No. 611/2008 and also order dated 18/2/2011 passed by the learned Ad hoc Additional Sessions Judge, Khamgaon in Criminal Revision No.15/2011.

2. Facts giving rise to the application may be stated in nutshell as under :

Respondent no.1 filed a private complaint alleging therein that the applicants committed offences punishable under Sections 463, 464, 465, 468 and 471 read with Section 34 of the Indian Penal Code as they forged a document in Criminal Revision No.52/2006 pending before the Additional Sessions Judge, Khamgaon. The learned Judicial Magistrate, First Class issued process against the accused for the offences punishable under Sections 465 and 471 of the Indian Penal Code. Initially it was registered as Regular Criminal Case No.88/2007 and later renumbered as Summary Criminal Case No.611/2008.

3. Accused appeared in pursuance to the process issued. Substance of accusations was explained to them. Complainant adduced his evidence. Statements of accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") were recorded. Accused examined three witnesses in support of their defence and one witness remained to be examined. Thereafter, Presiding Officer of the Court was transferred and another Judicial Officer took over the charge. Complainant filed an application (Exh. 154) for de novo trial in view of change of the Presiding Officer. This application was allowed.

4. On 21/12/2010 accused moved an application (Exh. 163) for permanent exemption mainly on the ground that in view of the order of de novo trial, it will take considerable time to conclude the trial and since they are not disputing the identity, they may be exempted from personal appearance in the Court. Vide order dated 28/1/2011, trial Court rejected the application. Accused challenged the order in Criminal Revision No.15/2011. The learned Additional Sessions Judge, Khamgaon dismissed the revision on 18/2/2011. Being aggrieved by the orders on Exhs. 154 and 163, applicants are invoking the jurisdiction of this Court under Section 482 of the Code.

5. It is the contention of the applicants that bar under Section 326(3) of the Code would not be attracted as evidence of complainant and three witnesses examined on behalf of defence came to be elaborately recorded by the trial Court. It is submitted that the full scope to examine and cross-examine the witnesses was given and the procedure adopted by the trial Court indicates that substance in summary way was not recorded at the time of recording evidence, but the evidence was recorded in a regular course. In this background, applicants submit that the order passed on Exh. 154 is mechanically passed and gross error is committed as the case tried was not a summary trial, but as regular summons case.

6. Regarding order on Exh. 163, applicants state that in view of the order passed on Exh. 154, Court ordered de novo trial and presence of applicants was not essential before the Court as recording of evidence would have commenced from beginning. Applicants state that they never evaded the trial and always cooperated in the proceedings. A grievance is made that without considering the fact that accused/applicants did not dispute the identity, the learned Magistrate rejected the application for permanent exemption.

7. Heard Shri A.C. Dharmadhikari, learned Counsel for applicants, Shri V.S. Giramkar, learned Counsel for respondent no.1 and Shri A.V. Palshikar, learned Additional Public Prosecutor for respondent no.2 State.

8. Shri Dharmadhikari, learned Counsel for applicants, submits that the controversy in respect of de novo trial in such cases is covered by the decision of the Hon'ble Supreme Court in J.V. Baharuni and another v. State of