Supreme Court of India
(From Madhya Pradesh High Court)
K.T. Thomas & K.G. Balakrishnan, JJ.
M/s. Bhaskar Industries Ltd. —Appellants
versus
M/s. Bhiwani Denim & Apparels Ltd. & Ors. —Respondents
Criminal Appeal No. 858 of 2001
(Arising out of SLP (Crl.) No. 1633 of 2001)
Decided on 27-8-2001
Counsel for the Parties :
For the Appellants : Dr. Abhishek M. Singhvi, Sr. Advocate Niraj Sharma and N.K. Modi, Advocates.
For the Respondent No. 2 : Anoop Choudhary, Sr. Advocate, Sanjay Sarin and Ashok Mathur, Advocates.
For the State of M.P. : Ms. Vibha Datta Makhija, Uma Nath Singh and Ms. Bharti, Advocates.

Important point
A Sessions Judge, overlooking a legal interdict, interfered with an interlocutory order and created a situation to confuse the Trial Magistrate about granting exemption from personal appearance to ac­cused No. 2 (Managing Director of a Co.) for an offence under Section 138 Negotiable Instruments Act, 1881. The Apex Court has allowed appeal and set aside order of Sessions Judge and made useful observa­tions for guidance of Trial Magistrate and the accused in relation to law of exemption from personal appearance in a summons case like the one involved.

Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Offence of dis­ho­nour of cheque—Cr. P.C. 1973—Section 397(2)—Trial Court issuing summons to accused Co. situated in Bhiwani and its Managing Director residing in another State—Applying for dispensing of personal appear­ance when bailable warrants issued—Magistrate granted anticipatory bail and directing him to be present in Court for furnishing security bond—Accused went in revision—Sessions Judge took undertaking for appearance through advocate and set aside Magistrate’s order—High Court declined to interfere—Appeal against to Supreme Court—Contention that respondents could not move the High Court in revision against an interlocutory order—Contention found tenable but two difficulties hence not decided and left open.

       Held : Dr. Abhishek M. Singhvi, learned senior counsel for the appellant/complainant first contended that the respondents could not move the High Court in revision against the order dated 28.4.2000 which was purely an interlocutory order. At the first blush we thought that the contention was sustainable, but there are two drawbacks for the appellant to raise such a contention. First is that the appellant did not raise any such contention before the High Court and hence it is not permissible for him to raise it for the first time in this appeal by special leave. Second is that it is difficult, in the ab­sence of other materials, to decide positively whether the order dated 28.4.2000 is an interlocutory order only. The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short ‘the Code’) is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this : If the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage. (Paras 7 and 8)

       After referring case law :

       Held : At any rate the objection regarding maintainability of the revi­sion petition should have been raised before the court which invoked such a revisional jurisdiction. Inasmuch as the same was not done we leave that question undecided now. (Para 11)

       (ii) Negotiable Instruments Act, 1881—Section 138—Offence under—Summons case—Cr. P.C. 1973—Question of granting exemption of personal appearance to second accused—Law—Precautions Cr. P.C. 1973—Sections 317, 279, 251, 205(1).

       Held : For prosecu­tion under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situa­tion, would inflict enormous hardship and cost to a particular ac­cused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings. (Para 15)

       Held further : Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the “ac­cused appears or is brought before the magistrate”. The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that “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.” Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the fur­ther steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceed­ings including examinations of the witnesses. (Paras 16 and 17)

       Held consequently : The position, therefore, bogs down to this : It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magis­trate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magis­trate can consider all aspects and pass appropriate orders thereon before proceeding further. In the result, we allow this appeal and set aside the order passed by the Sessions Judge on 30.6.2000 (in Criminal Revision Petition 197/2000). However, this course is adopted without prejudice to the rights of the second accused to move a fresh application seeking relief under Section 317 of the Code. If any such application is filed the magistrate shall pass orders thereon before proceeding further in the light of the observations made in this judgment. (Paras 19 and 20)