M/S. BHASKAR INDUSTRIES LTD.versusM/S. BHIWANI DENIM AND APPARELS LTD. AND ORS.

                        MIS. BHASKAR INDUSTRIES LTD.                                  A
                                     v.
           MIS. BHIWANI DENIM AND APPARELS LTD. AND ORS.

                                 AUGUST 27, 2001

                 [K.T. THOMAS AND K.G. BALAKRISHNAN, JJ.]                             B


           Criminal Law :

            Interlocutory order-Order passed by Magistrate on application for
     dispensing with personal appearance of accused-Question whether an order C
     is interlocuto1y order or not-Held, cannot be decided merely because the
     order was passed at interlocutory stage-Test laid down by Supreme Court
     explained-However, issue not decided for lack of material on record

            Revision-Order passed by Magistrate on application for dispensing D
     with personal appearance of accused-Issue regarding maintainability of
     revision neither raised before revisional court nor before High Court-Held,
     it is not permissible to raise the issue before·Supreme Court-Constitution of
     India, 1950-Article 136.

           Code of Criminal Procedure, 1973 :                                         E
            Ss.205, 317 and 273-Summons case-Power of Magistrate to dispense
     with personal appearance of accused-Held, it is within the judicial discretion
     of Magistrate to dispense with personal appearance of an accused either.
·•   throughout or at a particular stage of proceedings in a summons case if
 •
     Magistrate is satisfied that insistence on personal presence of accused would    F
     inflict enormous sufferings on him and comparative advantage would be less-
     In appropriate cases Magistrate can allow accused to make even first
     appearance through a counsel-Such discretion need be exercised in rare
     cases and Magistrate must take precautions as a matter of course.

           The appellant-company filed a complaint under s.138 of the Negotiable      G
     Instruments Act, 1881 in the Court of Judicial Magistrate, Bhopal against a
     company having its office at Bhiwani in Haryana (accused No. 1), its
     Managing Director (accused No. 2) and 13 others who were living in Haryana,
     Delhi and Chandigarh. The Magistrate issued summons to the accused. The

                                         219                                          H
    220                     SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A   summons issued to respondent-accused No. 2 having been received back
    unserved, the Magistrate issued bailable warrants whereupon accused No. 2
    filed an application for exemption from personal appearance. It was contended
    that the offence under s.138 of the Negotiable Instruments Act was relatively
    not a serious offence as it was made only a summons case and that the
B   insistence on physical presence of the accused would cause substantial
    hardships and sufferings to him. Pending application the Magistrate ordered
    him to be released on bail if arrested and directed him to be present in Court
    for purpose of furnishing security by executing a bond. All the accused
    challenged the order in a revision petition before the Sessions Judge, who set
    aside the order of the Magistrate without substituting it with any other
C   direction or order as regards accused No. 2 The complainant challenged the
    order of the Sessions Judge before the High Court, which declined to interfere.
    Aggrieved, the complaint filed the present appeal.

            It was contended for the appellant-complainant that the order of the
    Magistrate being purely an interlocutory one, the revision petition against it
D   was not maintainable.

             Allowing the appeal, the Court

          HELD : 1.1 Whether an order is interlocutory or not, cannot be
    decided by merely looking at the order or merely because the order was passed
E   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 moved 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
F   interlocutory stage.

         Madhu Limaye v. State ofMaharashtra, AIR (1979) SC 47 (19771 4 SCC
    551; V.C. Shukla v. State through CBI, AIR (1980) SC 962 1980 Supple. SCC
    92; Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., (199913 SCC
    134 and K.K. Patel and Anr. v. State of Gujarat and Anr., [2000) 6 SCC 195,
G relied on.
          1.2. 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, the question is left
    undecided. The appellant did not raise any such contention before the High
H   Court and hence it is not permissible for him to raise it for the first time in
              BHASKAR INDUSTRIES LTD. 1•. BHIWANI DENIM AND APPAREL LTD.         221
    this appeal by special leave. Besides, it is difficult, in the absence of other      A
    materials, to decide positively whether the order dated 28.4.2000 is an
    interlocutory order only.

          2.1. In view of the provisions of Section 317 of the Code of Criminal
    Procedure, 1973, the Court has power to dispense with the attendance of an
    accused if it is satisfied that in the interest of justice the personal attendance   B
    of the accused before it need not be insisted on. Though the normal rule as
    envisaged by Section 273 of the Code is that evidence shall be taken in the
    presence of the accused, even in absence of the accused such evidence can be
    taken provided he has been granted exemption from attending the Court and
    his counsel is present in the Court.
                                                                                         c
          2.2. 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 sufferings or tribulations to him and comparative advantage would           D
    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
    interest of justice. The Magistrate who grants the benefit to the accused must
    take these precautions as a matter of course.                                        E
          2.3. The concern of the criminal court should primarily be the
    administration of criminal justice. For that purpose the proceedings of the
    Court in the case should register progress. If the progress of the trial can be
    achieved even in the absence cif the accused, the Court can certainly take into
                                                                                         F
    account the magnitude of the sufferings which a particular accused person
    may have to bear with in order to make himself present in the Court in that
    particular case. In appropriate cases the Magistrate can allow an accused to
    make even the first appearance through a counsel.

           2.4. If the counsel engaged by the accused (whose personal appearance         G
    is dispensed with) does not appear or does not co-operate in proceeding with
    the case, the Magistrate can, as indicated in Section 205(2), in his discretion
    direct the personal attendance of the accused at any stage of the proceedings.
    The last limb of Section 317(1) confers a discretion on the Magistrate to direct
    the personal attendance of the accused at any subsequent stage of the
1
    proceedings. He can even resort to other steps for enforcing such attendance.        H
    222                     SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.

A         3. Since the Sessions Judge set aside the order of the Magistrate but
    did not substitute it with any other order as regards accused No. 2, the order
    of the Sessions Judge is set aside. However, it would be open to accused No.
    3 to move a fresh application seeking relief under s.317 of the Code and the
    Magistrate would pass orders thereon in the light of this judgment.

B        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    858 of 200 I.

         From the Judgment and Order dated 22.11.2000 of the Madhya Pradesh
    High Court in M.Crl.C. No. 1210 of 2000.

C        Dr. Abhishek M. Singhvi, Niraj Sharma and N.K. Modi for the
    Appellants.

         Anoop Choudhary, Sanjay Sarin and Ashok Mathur for the Respondent
    No. 2.

D        Ms. Vibha Datta Makhija, Uma Nath Singh and Ms. Bharti for the State
    of M.P.

          The Judgment of the Court was delivered by

          THOMAS, J. Leave granted.
E
           A Sessions Judge, overlooking a legal interdict, interfered with an
    interlocutory order and created a situation for the trial magistrate to remain
    nonplussed. That order of the Sessions Judge was sought to be rectified at the
    behest of the appellant who, for that purpose, moved the High Court. But a
F   learned Single Judge of the High Court declined to interfere. Now the trial
    magistrate might be under a dilemma as to what is the proper course for him
    to adopt.

        The facts lie in a narrow compass. Appellant company filed a criminal
  complaint before the court of Judicial Magistrate ofFirst Class, Bhopal (M.P.)
G against 15 accused for the offence under Section 138 of the Negotiable
  Instruments Act. The first accused in the complaint is a company having its
  registered office at Bhiwani in Haryana. Second accused is the Managing
  Director of that _company. All the remaining accused are persons said to be
  associated with the first accused - company and they are all living in far
  distant places from Bhopal, some are in Haryana while some others are in
H Chandigarh and some others are in New Delhi. The magistrate took cognizance
    BHASKAR INDUSTRIES LTD."· BHIWANI DENIM AND APPAREL LTD. [THOMAS, l.1223

of the offence and issued summons to the accused. It is not necessary to            A
narrate what happened to the summons issued to the various accused except
in the case of the second accused, because this appeal is now restricted to the
order concerning the second accused who is arrayed as the second respondent
in the special leave petition.

      On 28.4.2000 the trial magistrate recorded that the notice issued to the      B
second accused (Subhas~ Sahni) was received back with the report that he
was not seen at his residence the address of which was shown on the notice.
When other members of the said house refused to accept the notice it was
affixed on the house. On the said circumstances the magistrate issued bailable
warrants to the accused. Second accused filed an application for exemption          C
from personal appearance. Pending the same, the magistrate ordered him to
be released on bail if arrested and directed him to be present in the court for
the purpose of furnishing security by executing a bond for Rs. 5,000.

      All the accused filed a revision petition before the Sessions Court against
the order passed by the magistrate on 28.4.2000. Learned Sessions Judge             D
(Shri Ranjit Singh, Vlth Additional Sessions Judge, Bhopal) minuted that the
advocate for the second accused had given an undertaking that he shall appear
before the trial court on behalf of his client. After recording the above
submission made by the advocate the Sessions Judge passed an order the
operative part of which is as follows:
                                                                                    E
        "From the analysis of evidence above (sic) it is clear that the impugned
        order of the trial court is not in accordance with law. Thus, the
        question under consideration is decided in negative. On the basis of
        the aforesaid analysis I reach a conclusion that the impugned order
        of the trial court being not in accordance with law does not deserve        F
        to be maintained. Therefore, this revision petition is allowed and the
        impugned order of the trial court dated 28.4.2000 is set aside."

      When he set aside the order of. the magistrate dated 28.4.2000, what
should the magistrate do thereafter as against second accused? We could not
discern it, and we can imagine the dilemma of the magistrate as to the course       G
to be adopted thereafter. If a Sessions Judge chooses to pass such a vague
and confusing order what could the subordinate court do. The confusion got
confounded when the Sessions Judge set aside the order of the magistrate
without substituting with any other direction or order and consequently the
stage was set in a quandary. It was the said order which the respondent-
complainant challenged before the High Court. But the confused situation            H
    224                     SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.

A   was not defused by the High Court as learned Single Judge declined to
    interfere with the order of the Sessions Court.

           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
B   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 {;ourt 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
C   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
D   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
E   that it was passed during any interlocutory stage.

           A three Judge Bench of this Court in Madhu Limaye v. State of
    Maharashtra, AIR (1978) SC 47 = [I977) 4 SCC 551 laid down the following
    test: "An order rejecting the plea of the accused on a point which, when
    accepted, will conclude the particular proceeding, will surely be not an
F
    interlocutory order within the meaning of Section 397(2)." This was upheld
    by the four Judge Bench of this Court in V. C. Shukla v. State through CBI
    AIR ( 1980) SC 962 = [1980) Supple. SCC 92.

          The above position was reiterated in Rajendra Kumar Sitaram Pande
G   and Ors. V. Uttam and anr., [1999] 3 sec 134. Again in K.K. Patel and Anr.
    v. State of Gujarat and Anr., [2000) 6 SCC 195 this Court stated thus:

            "It is well-nigh settled that in deciding whether an order challenged
            is interlocutory or not as for Section 397(2) of the Code, the sole test
            is not whether such order was passed during the interim stage (vide
H           Amar Nath v. State of Haryana, Madhu Limaye v. State of
    BHASKAR INDUSTRIES LTD. 1·. BHIWANI DENIM AND APPAREL LTD. [THOMAS, J.l 225

        Maharashtra, V.C. Shukla v. State through CBI and Rajendra Kumar A
        Sitaram Pande v. Uttam. The feasible test is whether by upholding
        the objections raised by a party, it would result in culminating the
        proceedings, if so any order passed on such objections would not be
        merely interlocutory in nature as envisaged in Section 397(2) of the
        Code. In the present case, if the objections raised by the appellants        B
        were upheld by the Court the entire prosecution proceedings would
        have been terminated.' Hence, as per the said standard, the order was
        revisable."

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

       We cannot part with this matter without adverting to the plea made by
the second accused before the trial court for exempting him from personal
appearance. He highlighted two factors while seeking such exemption. First           D
is that the offence under Section 13 8 of the Negotiable Instruments Act is
relatively not a serious offence as could be seen from the fact that the
legislature made it only a summons case. Second is, the insistence on the
physical presence of the accused in the case would cause substantial hardships
and sufferings to him as he is a resident of Haryana. To undertake a long
journey to reach Bhopal for making his physical presence in the court involves,      E
apart from great hardships, much expenses also, contended the counsel. He
submitted th~t the advantages the court gets on account of the presence of the
accused are far less than the tribulations the accused has to suffer to make
such presence in certain situations and hence the court should consider whether
such advantages can be achieved by other measures. Therefore, he relied on           p
Section 317 of the Code. It reads thus:

        "317. Provision for inquiries and trial being held in the absence of
        accused in certain cases.- (I) At any stage of an inquiry or trial under
        this Code, if the Judge or Magistrate is satisfied, for reasons to be
        recorded, that the personal attendance of the accused before the Court       G
        is not necessary in the interests of justice, or that the accused
        persistently disturbs the proceedings in Court, the Judge or Magistrate
        may, if the accused is represented by a pleader, dispense with his
        attendance and proceed with such inquiry or trial in his absence, and
        may, at any subsequent stage of the proceedings, direct the personal
        attendance of such accused.                                                  H
    226                     SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A           (2) If the accused in any such case is not represented by a pleader,
            or if the Judge or Magistrate considers his personal attendance
            necessary, he may, if he thinks fit and for reasons to be recorded by
            him, either adjourn such inquiry or trial, or order that the case of such
            accused be taken up or tried separately."

B        Sub-section (I) envisages two exigencies when the court can proceed
  with the trial proceedings in a criminal case after dispensing with the personal
  attendance of an accused. We are not concerned with one of those exigencies
  i.e. when the accused persistently disturbs the proceedings. Here we need
  consider only the other exigency. If a court is satisfied that in the interest of
C justice the personal attendance of an accused before it need not be insisted
  on, then the court has the power to dispense with the attendance of that
  accused. In this context a reference to Section 273 of the Code is useful. It
  says that "except as otherwise expressly provided, all evidence taken in the
  course of the trial or other proceeding shall be taken in the presence of the
  accused or, when his personal attendance is dispensed with, in the presence
D of his pleader." If a court feels that insisting on the personal attendance of
  an accused in a particular case would be too harsh on account of a variety
  of reasons, can't the court afford relief to such an accused in the matter of
  facing the prosecution proceedings?

         The normal rule is that the evidence shall be taken in the presence of
E the accused. However, even in the absence of the accused such evidence can
  be taken but then his counsel must be present in the court, provided he has
  been granted exemption from attending the court. The concern of the criminal
  court should primarily be the administration of criminal justice. For that
  purpose the proceedings of the court in the case should register progress.
  Presence of the accused in the court is not for marking his attendance just for
F
  the sake of seeing him in the court. It is to enable the court to proceed with
  the trial. If the progress of the trial can be achieved even in the absence of
  the accused the court can certainly take into account the magnitude of the
  sufferings which a particular accused person may have to bear with in order
  to make himself present in the court in that particular case.
G
        These are days when prosecutions for the offence under Section 138
  are galloping up in criminal courts. Due to the increase of inter-State
  transactions through the facilities of the banks it is not uncommon that when
  prosecutions are instituted in one State the accused might belong to a different
  State, sometimes a far distant State. Not very rarely such accused would be
H ladies also. For prosecution under Section 138 of the NI Act the trial should
        BHASKAR INDUSTRIES LTD.'" BHIWANI DENIM AND APPAREL LTD. [THOMAS, l.l 227

    be that of summons case. When a magistrate feels that insistence of personal     A
    attendance of the accused in a summons case, in a particular situation, would
    inflict enonnous 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.

          Section 251 is the commencing provision in Chapter XX of the Code          B
    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     C
    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 D
    record the plea of the accused even when his counsel makes such plea on
    behalf of the accused in ii 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 E
    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 p
-   necessary for the further progress of the proceedings including examination
    of the witnesses.

          A question could legitimately be asked - what might happen if the

-   counsel engaged by the accused (whose personal appearance is dispensed
    with) does not appear or that the counsel does not co-operate in proceeding
    with the case? We may point out that the legislature has taken care for such
                                                                                     G

    eventualities. Section 205(2) says that the magistrate can in his discretion
    direct the personal attendance of the accused at any stage of the proceedings.
    The last limb of Section 317(1) confers a discretion on the magistrate to
    direct the personal attendance of the accused at any subsequent stage of the     H
    228                     SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A proceedings. He can even resort to other steps for enforcing such attendance.
         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
B 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 othe~
  good reasons the magistrate feels that dispensing with the personal attendance
C 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
D 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
E 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.

    R.P.                                                         Appeal allowed.


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