Wednesday, December 30, 2009


2001 AIR 3625 2001(2)Suppl.SCR219 2001(7)SCC401 2001(5)SCALE503 2001(7)JT127

Appeal (crl.) 858 of 2001




DATE OF JUDGMENT: 27/08/2001

K.T. Thomas & K.G. Balakrishnan



Leave granted.

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 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 of First Class, Bhopal (M.P.) 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 Chandigarh and some others are in New
Delhi. The magistrate took cognizance of the offence and
issued summons to the accused. It is not necessary to
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 second accused (Subhash 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 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 (Shri Ranjit Singh,
VIth 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:

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
to be maintained. Therefore, this revision
petition is allowed and the impugned order
of the trial court dated 28.4.2000 is set

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 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 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
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.

A three Judge Bench of this Court in Madhu Limaye vs.
State of Maharashtra {AIR 1978 SC 47 = 1977 (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
interlocutory order within the meaning of Section 397(2).
This was upheld by the four Judge Bench of this Court in
V.C. Shukla vs. State through CBI (AIR 1980 SC 962 = 1980
Supple. SCC 92).

The above position was reiterated in Rajendra Kumar
Sitaram Pande & ors. vs. Uttam and anr. {1999 (3) SCC 134}.
Again in K.K. Patel and anr. vs. 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 Amar
Nath v. State of Haryana, Madhu Limaye v.
State of Maharashtra, V.C. Shukla v. State
through CBI and Rajendra Kumar 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 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 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 is that
the offence under Section 138 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, apart from great
hardships, much expenses also, contended the counsel. He
submitted that 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 Section 317 of the Code.
It reads thus:

317. Provision for inquiries and trial
being held in the absence of accused in
certain cases.- (1) 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
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.

(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 re corded by him, either
adjourn such inquiry or trial, or order that
the case of such accused be taken up or
tried separately.

Sub-section (1) 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 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 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,
cant 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 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 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.

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 ladies also. 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.

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 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 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 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 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

( K.T. Thomas )

( K.G. Balakrishnan )
August 27, 2001.

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