An order under section 205 of the Code refusing the application for dispensing with personal appearance of the accused is an interlocutory order and while so a revision against that order is barred under sub-section (2) to section 397 of the Code.

JUDGMENT :

Per, Shree Chandrashekhar, J.

The petitioners are accused in Complaint Case No.C-195 of 2012.

2. This was a dispute like thousands of other disputes between an employee and the employer, one claiming non-payment of salary and the other alleging misconduct and misappropriation of the Company’s fund in course of the employment that led to filing of a written complaint dated 14.09.2011 by Vijay Mohan Prasad to the police. Doranda (Argora) PS Case No.369 of 2011 was registered against Ashuthosh Kumar Sinha under sections 420, 467, 468, 471, 427, 379 and 504 of the Indian Penal Code on the allegation that the accused who was employed as Sales Executive with Xena Technologies Private Limited entered into fraudulent transactions with different clients and caused financial losses to the Company. In Doranda case, the police has submitted charge-sheet against Ashutosh Kumar Sinha and cognizance of the offence under sections 420, 467, 468, 471, 427, 379 and 504 of the Indian Penal Code was taken by the learned Magistrate on 20.04.2012. It is said that Ashutosh Kumar Sinha hit back by filing Complaint Case No. C-195 of 2012, the present case, alleging threat and coercion by the petitioners who were his employers, when he demanded payment of full salary and his original certificates. In a separate proceeding the petitioners have approached this Court in Cr.M.P. No. 1328 of 2014 challenging the entire criminal proceedings in Complaint Case No. C-195 of 2012 and the said quash petition is still pending for final disposal.

3. In the enquiry under section 202 of the Code of Criminal Procedure (hereinafter referred to as the Code) the complainant gave his statement on solemn affirmation and examined three witnesses. The learned Magistrate took cognizance of the offence under sections 406, 506 and 504 of the Indian Penal Code and the summons issued on 11.04.2014 to Vijay Mohan Prasad and Reshma Kanti Lal Vora @ Rashmi Srivastava were returned with an endorsement that the accused have refused to accept the summons – the other two accused, namely, Nitant Mohan Srivastava and Sushant Mohan Srivastava were not summoned to face the trial. A petition dated 02.07.2014 was filed on behalf of Vijay Mohan Prasad seeking exemption from the personal appearance on the ground that he is a busy businessman. Reshma Kanti Lal Vora, the petitioner no.2, also moved a similar application under section 205 of the Code on the ground that she was residing in Angola, South Africa. Now, the petitioners, through supplementary affidavit dated 11.01.2021, would submit that the petitioner no.1 aged about 76 years has undergone Angioplasty and the petitioner no.2 after her return from Angola is residing at Pune and she has to look after her 10-year-old daughter. In opposition to the applications under section 205 of the Code, the complainant took a position that the judicial discretion to dispense with the personal appearance of an accused can be exercised only in rare instances, and when the Magistrate finds it necessary in the interest of justice. It was pointed out that both the accused are residents of House No. 62/A, A.G. Cooperative Colony, Ranchi which was the address disclosed by the accused themselves in the Vakalatnama executed by them and, moreover, Vijay Mohan Prasad was appearing in the mediation sessions in connection to G.R. No. 4599 of 2011. On the other hand, the accused put forth a plea that insistence on their personal presence and, that too, at the initial stage of the trial would inflict enormous harassment and tribulations to them.

4. The aforesaid applications filed by the accused under section 205 of the Code were dismissed by a common order dated 24.03.2015.

5. The learned Magistrate has held as under:

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