.p-R' HI6H COURT OF JUDIC^TURE. BILASPUR iWHATTlSGMW) PETITIONER: Writ Petltton No. 2520 of 2003 V. K. Punshi. cged obout 62 years, Occupier: M/s &harnisi Morarji Cheroical Co.Ltd., Kumhori, ft/o Makers Towers, A-103,10th Molo, Kaif Pcyade, Mumbai. \/ersus RESPONDENTS: 1. State of ChhottiS9arh, Throighs FcK;tory Inspector, Off'we of beputy Oirecfror, Industrial Health A Safely, t>u*9. 2. President. Industrial Court, Near Montraloya, Raipur (C.6.). 3. Labour Court (Magistrate l"t Class), Dur9. (C.6.). POST FOR ORbER ON 18th November. 2003 Sd/- L.C. Bhadoo Judge 18th November 2003 mGH COURT OF IUDICATURR CHHATTISGARH AT BILASFUR Ptetition MB. 2520 of 2003 PETITION : RESPONDENTS: V. K. Punshi, aged about 62 yeaw, Occupieri AVs Dharmsj Morarji Chemtcal Co. Ltd.,KumharJ. ft/o Makers Towers, A-103.10th Malo, Kcuf Parade, Mianbd. Versus 1. State of Chhattisgorh. Throughs Pactory Inspectw^ Office of Deputy &jr<ator, Industrial Health A Safety, Dirg. President, Industrial Cburt. Near Mantrakya, RaSpur(C.6.). Labour Court (Mtgistrate lrt Class), Dur9. <C.G.}. Prcsent: Shri H.N. V/as with Shri N.K. Vyos. Advocates for the petittoner. Shri Ranbir Singh, 6ovt. Advocate. for the State/rcspondent No.l. Bcforc: Honbte Mr. Jurttee L.C. Bhadoo, J. ORbER (Passed on J^.November, 2003) 1. The petitioror has |yeferred this petition under Article 226/227 of thc Constitution of India, chaflenging 1+ie order* passcd by the Presiderrt-, Industrial Coirt, Raipur dated 30th June 2003 and order dated 4-12-2001 passed by the Magistrate l*t Class ^dbour Cart) Dur9. in CrJmiml Case No. 253/Factory Act/2001. 2. Brief facts leading to filing of this petition are that the petitioner is the Manqgir^ birector of M/s Oharmsi Morarji Chemical Ltd. Bombay. The company has a mnnber of factories 3. through out Ihe country mwiufacturing fertilizers. sulphuric acid etc. and one of the factory is situated at Kumhari, District Durg. The petitioner namely, V.K. Puitthi is ^ie ocaipier of this Kwnharj unit imder the Factorjes <Act, 1948. On 17-10-2001, Factory Inspector, Durg, State of CWiatl-isgarh filed a complaint qgdnst the petitioner for contrwention of Sectlons 7A(i) A 7A(2) (a) of the Factories Act, 1948 in the Court of Magistrate lrt Class (Labour Court) a\[eynQ thot on 15th July 2001 at obout 11 am one ^iri Khorbahara Raro Sdiu was fotally jr^jured at mill No.2 as his forehead, right upper limp and lefl- hcaid were crushed betwcen the rotters of the mill vriien sdd l^iwbahora ftam Sohu was enqcsQed on Jubricatin9 the roller No.3 "rtirou9h <rtie fnq»ection openiry provided in the body of the mill No.2 after rcnwvirg tfw hinged cover provided on the inspectton opening. No wfety meocave regardjr^ romoving 1+ie fuses/artting of 1+ie powcr supply frorn the mdns had been taken to ^event the inadvert'ent ^tartirg of the miJI by a third <^ency Mke the tnitl operator of the mjJI. Therefore, the mjll was inadverl'ently stwted by the nitlt operator from the mill <yerat<w*'s room reailting a death of the worknim- Had 1+iere been a systeni of td<ing effective shutdowns of the mill No.2 under lubrication and mdntenonce. the acddent coutel hwe been avoided. The learrod Laboir Court on receiving this coro^aint issued 1+ie sunmons for appeonaice to the petitioner. An q»pljcationunder Section 205 of "rtie Cr.P.C. for grcBrt" of permanent exemption frons perewial <y^arance on bet?alf of 1+»eaccuwd/appjicant was moved before the Laboir Court reqwsting Iherein that as he is requir'ed to remain pre^nt at Head Offjce. Mumbai and also required to visit out of India for thc pwposes of compan/s business ond the Head Office is situatwl at a distar^ of dwut 1400 kms. fran Ourg, tfierefore, to pemiit the awused/<vptt«mt to appear or to plead thpoi^h <m Advocate enysged by him namely Shri H.N. Vyas. R.N. \fyas. NX V/as and S.P. N<rth. It is very difficult for the applicant to reinain (resent in llw Coirt on eadi and every dote of heaanng and he undertakcs tfiat he ahall keep himself present in the Coirt as and u^wn it is so deemed fft by the Hon'ble Cburt. The learned USoow Coirt vide its order doted 4-12-2001 passed on order exemptin9 the personal <q^earoiice of the apptlccOTt <m that doy and for futire oypearwice the Coirt ordered thot the request of the applicant js accepted with 1+»e condition that he would submit a personal bond and surety in Ihe sum of Rs. 2.000/- and also ttie opplicant to dpfwsf at 1+ie time of recording of his statwient and also on <the date of hearing. A^rieved by this Grder, Itie petitioner/dyplicant moved a criminaj revision under Section 397 of the CrP.C. in the Industrial Coirt, ChhattiS9arh. The President of ttie learned Industrial Court vide impugned order dated 30th June 2003 dismissed the revision considering ttiat 1+»e order yossed by 1+ie Magistrate under Section 205 of the CrP.C. is jnterlocutory in nature, therefore, no revision lies agddnst ^ich wder and it was firther held that except in petty offences <B described umlcr Section 206 of the Cr.P.C. <q»plica*ionfor permanent exemption from personal appearance by the accu^d should be all<wed onfy when the accused h<s oppeared in Ihe court wid has furnidied recognizance bonds, and there are ^rffident and cogent grounds for allowing rtie appjication. By this petition. the petitioner has chalten^d the dbove orders primcrity on the graind that thc order of the learned Inckist-rKri court is not legal, being rot ih accordance with the law as settled by Ihe Horrt»leApex Cairt ond 1+ie High Cowts, <»1+ie impugned order passed by the Ld>ow Court wws not an inter'lwutory in noture. FtB*ther judicid functioning of Shpj O.S. Jain, Presklent IndiBtrial Cburt, Oihattisgarh <wJth<Hjt a^ointment of one or more members for the Court is corrtrary to Section 9 of the Chhattisgarh Industrid Relations Act, 2000, therofore, it te not legalty constituted. However, during 1+te coirse of ar9uments, 4 8. jeanied com \ for the pctitioner/applicant has not pressed the second ground i.e. 1+ie Industriat Court, Chhatti^cy+i is not tegQWy constituted Court. I have heard Shri H.N. Vyas. counsel for the petitioncr and Shri RarAir* Sin9h. ©ovemmentAclvwate fw the State/rospondent No.l. Tlie learned counwl fw -riie petitioner orgued 1+iat the order passed by 1+ie leorned Presiding Officer, Labour Cwrt (MagistraTt'e 1 Clas^) is not intertocutory in natire a$ Ihe same effects 1+»erights of the petitioner by disallowi»gllie cpplicatton of the petitiorier. The petitioner has been asked to appecr before the Cowt ond fwm^wd a persond bond and Ihereafter to appear on the date of recording of the statement imder Section 313 of the Cr.P.C. and also to remain present «ithe dote of arguments (beir^ contrcry to the settled l<w. He firltier argued that in view of the wtt-led Idnw on the point, the leamed Labour Court ought to hwe exempted the petitioner from personal appecrance before 1+iat Coirt permanently ond that Court ought to hwe allowed the petitioner to q»pe<»*through a eounsel and even statement wider Section 313 of the Cr.P.C. could hwe been recorded through the coiuisel. ReaJizir^ the difficulty expressed by 1+ie petitiomr cs he was resfelir^ at a very distQnt place, he was engcged in the busii^»,and he was r'equired to 90 various p<M*ts of the country and also dwmri. He further argi^d that 1+»e offence is (HinishAle with 2 years imprisonment wvd fine of Ks. 1 lakh, therefore, the offen^ is triable as summons case. On the other hand, leamed ©overrwnentAdvocate argued thot leamed Labour Cowt hcs, by and largc, wcepted the apptication under Section 205 of the CrP.C.. but the leomed Lebour Court considered the freseme of the accused/petitioner TOcessary wi the first date of hearing for fimiditr^ the personal fcwid <a^l surety as also for recordiry his statement and also on the dates of hearing, therefore, the petition does not lie. 9. As far as the question of nature of the impugned order 1$ concerned, whether the order possed by the lecrned Labour Court is intertocutory in natire, therefore, Ihe revisiwi qgdnst 1+iat order is borred as per the provisions of Section 397 (2) of the Cr.P.C. In this connection, simildr question came iq^ for consideration before the Honfcle Apcx Court- in ttie m<itter of Amw Nath v. Stote of Haryuna reported in AER 1977 SC 2185 <md the Cowt oteerved thatn it was a matter of moment and it decided the serious question os to the rights of the appellonts to be put on trial <md as such was not an interlocutor/ order md consequently the revision was declared to be competent and holding that an Interlocutory order was being equated with CBI order o^purely mterim md teniiKrary TOture or an order which could be in the natwe of an order embracing items which could be steps in aid of the proceeding; wher^ss the other c^pects were lifted out of the pirview of sidi cwicept. It wos specifjcally observed 1+»at<»iyorder of moment w an order which substantially affects 1+ie rights of parties or decides certoin rights of the parties could not be sdd to be an interlocutory and a further category was enviscged wrfiidh could be treated as intermediate order, which could in proper cases be taken out of the aweep of interlocutory order" 10. Again in Madhu Umayc's case (1978 Cri. L.J. 165) (50 the concept of interlocutory nature of m order which was high- lighted in Amw Nath's case was reiterated and in the said cffse the appellcnTt^ therein had taken a lyeliminary objection at the threshold of the crimimil proceedir^ obout the jurisdiction of a Court- at Bomboy and it is in thot context. jt was observed that when the High Cajrt declined to interfere with the decision of the s<ud issue which would 90 to the root of the matter oustir^ the jurisdiction of 1+ie Court and thus had Q ccpacity of terminating the proceeding. However, there is one feature which strikingly occurs during the coirse of the observation and which has some relevdBwe. The Supreme Court by another limb of reasoning indicated that if any occurrence falling short of finality is to be embraced by term "interbcutory wder", then the le9islotive intent would end into fri^tration and it was accordingty observed that such an interpretation and universd application of the prirwiple that what is not a final order* miet be an interlocutory order is neither warranted nor justified. If it were so it witt render almost nugatory the revisional power of the Sessions Coirt or the High Court conferred on it by Sed-ion 397 (1). On such a strict interpretation, only those orders would be revisable which are wders pccsed on the final determinatjon of the action but <re not appedable. Thte does not seem to be the intention of the Legislatire when it retained the revisional |wwer of the High Court <n terms identical to the ones in the 1898 Code. 11. Ag01" in th®matter of V.C. ShuMa v. Stote through C.B.I. reported in A . 1980 SUPftEME COURT 962. the Hon'bte Apex Court ob^rved that 11 the wwd 'interbaitory order' used in Section 397 (2) of the Code relates to v<rious stages of the trial, nomely, appeal, inquiry, trial or any other proceeding. The object seems to be to cut <town the detoys in stages through which a criminal case passes before it culminates in an acquittal, discharge or comictjon. Hwing regord to the very large ambjt and range of the Code, the expression 'interlocutory order' would have to be 9iven a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. Tlie term 'interbcutory order' vsed in the Code of Criniinal Procedure h<^ to be given a very liberd construction in favour of the accused in order to ensure complete fainiess of the trial becouse the bw contained in Section 397 (3) of the Code would appty to a variety of cases corning ly before the courts not only bein9 offences under the Perwil Code but under numerous Acts. The revisional power of the High Court or the / j^^'i^w^ 7 Sessions Judge could be attracted if the order wos not pure(y interlocutory but intermediate or quasi final." 12. Hon'ble Apex Court in the mcttter of Bhaskar Industries Ltd. Vcrsus Bhiwdni Oenim A Appnrels Ltd. and others reported in (2001) 7 Supreme Cowt Cases 401 after disciBsing the \ew loid down in the abovementioned case hetd that llthe interdict contain&d in Section 397 (2) is that the powers of revision ^idl not be exercised in relation to ony interlocutory order. Whether an order is interlocutory or not, canrot be decided by merely looking at the order or merely becaus®the order was possed ot the Snterlocutory stage. The safe test is Ihjss if the contention of the petitioner who moves the superior cwrt in revision, as against the order under chaltenge is upheld, would the crtmincil proceedings asa whole cutminote? If they would, then the order is not interlocutory in spite of the fact that it was passed duriry any interlocutory stqge. The feasible test is whether b/ upholding the objections raiwd by a party, it would result in culminating the proceeding, if so any order passed on sudi objections would not be merely intertocutory in nature as envisc^ed in Section 397 (2) of the Code. In this coae also the question was regdrding the exemption of the accused from personal appeflrance and the Court reached to Ifie conclusion that jn the present case. if the objecl-ton raised by the cypellants were uyhetd by the Coiirt the entire prosecution (roceedings would have been terminated. Hence, as per Ihe said stand<rd, the order wos revisAle/' 13. The High Court of Madhya Ppadesh in the matter of Al<ram A another versus Slulc ®fM.P. reported in (2000) i ACC 614 held that ttthe order passed regardir^ rejecting the flyplteation of personal exemption is not an interlocutwy order." Similarly. the High Cotrt of Bomboy in the matter of Hasmukh J. Jhaveri v. Shella Oadlani ond another reported in 1981 CRI. L. J. 958 interpreted the meaning of interlocutory order after relying 8 ^ 14. on the above decisions of the Apex Courl' held that the qwstion (a) decides; or (b) even touches the imporl'ant rights or liabtlities of the parties; cannot be said to be interlocutwy. An order which - (a) substantiatly affects the rights of the parties or Qb) decides certain rights of the pa'ties; cannot be termed as 'jntertocutcwy. An order which - (a) drijudicates; or (b) even affects - (i) either the rights of the (Krties; 00 even any particulcr aspect of the trtal or the proceeding cannot be also termed as 'intertocutory order'. In view of the abwe law settled by the Hon'bte Apex Court even the fact thot the mdn proceeding is kept alive that does not ipso facto give a stamp to several such orders as "interlocutory order". The potential capacity to terminate proceeding or to give it a Idfcel of finality is also not the only md conclusive criterion, though it by itself is a relevant feature. Similarly, though a stcnnp of finality to the proceeding w tennination of the |»toceeding moy be quite a relevant and important consideration, yet it is not a sole criterion of the test m that behdf. Irrespective of the order becrir^ stamp of finality, 1+iere may be m intervening stage iriiich can be called as Interniediate stoge' at which an order moy be pas^d which in turn moy be catled as "jntermediate order". which r^ither gives the finality to ttie proceeding nw is |Mjre(y interim or temporary and as sudi is not cn interlocutory order, but would fall in between and in certain cases such order cm be said to be not intertocutory. Therefore, in view of 1+ie above propositions of law on the point, if we took into the fwts of the present case the petitioner reqwsted that he was residing at a distance of 1400 kms. fr<mi Durg, he was er^oged m the bieiness activitjes and he was required frequently to 90 to varioi^ p<rts of Imjlia and abroad. It was very difficult for him to appwv. ttierefore, his personal attendance nioy be exempted and he be y»rroittedto appear or to plead throu^i an crivocate as per the provisions of Section 205 of the Cr.P.C. which the le<rned Ldxwr Court albwed p<rtially with conditional <w*der which has been menti<med above. This definitely affects the rights of the petitioner. If this apptication was allowed then this proceedin9 would have been termjnated finally in favow of the petitioner because his personal oppearance would haye been exempted. Therefore, the finding of the learned Industrial Court that the order passed by the Labour Court is interlocutory in rwrture does not stand to the law laid down on the point, Tlierefore, the fmding of Industrid Court on this aspect is not legal <md correct. 15. Now, comirg to the second question, in the circumstQnces, whether the petitioner is entitled for pennanent exemption from appearance before the Cburt. Tlie ch<rges against the petitioner we under Sections 7A (1) and 7A(2)(a) of the Factories Act, 1948 which »s punishoble ly to two years jmprisonment and fine of fts. 1 lakh, therefore, this offences are triable as sunmons case. Section 205 of the Cr.P.C. reads as imder:- "(l) Whenever a Mcgistrate issues a sommons. he may, if he sees reason so to, do, dispense with the persomil attendcnce of the accuwd cnd permit him to appecr by his pleader. (2) But the Magistrate inquiring into or trying the case, moy, in his discretion, at any stage of the proceedir^s, direct the personal attendarwe of the accused, and, if necessary, enfwce such attendance in the manner* hereinbefore provided." 16. As mentioned above. similcr questiwi came for consideration before the Hon'ble Apex Court in the motter of Btiaslaw Industrles Ltd. (Supra) in which the petitioner/accused was required to appear before the Magistrate to foce the ch<rge under Section 138 of N^otiable Instruments Act and the Hon'ble Apex Court held that Sections 251 and 205(1) of the Code make it clear that in appropriate cases the Magistrate con allow an accused to md<e even llie firat appecrance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea wi behalf of the 10 17. accused in Q case where the ^rsonal appearance of the accused is dispensed with. Section 317 of the Cbde has to be viewed in the above perspective os it empowers the court to dispense with the personal attendcnce of the accused even fw proceeding with the further steps in tfie case. However, one precautiwi which 1+ie court should take in such a situation is thot the said benefit need be granted only to an accused who gives <ai undertaking to the satisfaction of the Court thot h& would not dispute his identity as the particular accused in the case. and that a counsel CTI his behalf would be present in court and that he has no objectton in tcfcing evidence in his absence. It is within the powers of a Ma9istrote arKl in his judicial discretion to dispense with the personal appearcnce of m accused eilher l+iroughout or at any particula* stage of such proceedings in a summor» case, if the Magistnite fjnds -rtiat insistence of his personal presence would itself inflict enormous sufferin9 or tribulations on him, and the comparotjve advcaitdge would be less. Such discretion need be exercised <mly Sn rare instonces where due to the far distance at whjch the accused resides or ccrries on business or on account of any physical or other good reasons the Mc^istpate feels that dispensing with the personal attendonce of the accused would only be in the interests of justice. In the motter of Chandu Lal Chandroter v. Pwwi Mal and another r&ported in ^IR 1988 SUPREME COURT 2163 the Court he(d that "personof attendance of accused at trial dispensed with - Accused ordered to appecB* perscmaKy before court for exQmination - Statement made by accused before Supreme Court that he does not w<mt to oswmer <aiy of the questions put to him by court and would not raise question of prejudice ot any stage - Oder to personally appeor for examination set-aside". 18. As per our Cn'mjnal Justic®System the concern of 1+ie criminal / court should priniartly be the expeditious adminjstratjon of 11 '^ 19. criminal justice. For that purpose the proceedings of the cwrt in a case should r^ister progress. Preseme of the accused in the court js not for mokir^ his attendance just for the sake of seein9 him in the court. It is to endble 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 certdnty take into account the magnitude of the sufferings which a particular accused person moy have to bear with in order to niake himself pres&nt in the court in that particulcr case. Therefore, the mdn concem of the crimjnal court is to see that the trial rnust jM^ress expeditiousty md without any hindrance and if in the absence of the accused the trial can be proceeded with, ttie Magistrote should in the ordinory cowse dispense with the personal attendance of the accused. Even that can be exempted on the first date of heQring ond dwing the ftirlher course of hewing and even at the stcge of r®cordin9the statement of the accused under Section 313 of the Cr.P.C. and the statement can be recorded through an crfvocate. One precaution which the learned Mc^istrate is required to take that before granting permanent exemption, he should obtain <ui undertaking from the acaised that the plea of the guitt can be recorded through his advocate. The stateraent under Section 313 of the Cr.P.C. can be recorded through his dKlvocate and witne^es ccn be excnnined in his absence and they will be cross-exdniined by his advocate and he wilj not raise any objection regdrding his identity and fwther that for his d>sence during the dwve stages of the hearing, he will not raise any objectiwi regardjng the prejudice caused to htm on account of hls absence duririg the trial. TTie offences which we. triable as sunmons case ore not serious in nature. However, in serious offemes, the Court can insist upon the attendance of the accused and discretion has been given to the court under Sections 205 and 317 of the Cr.P.C. to exempt the personal ottendance of the accused. The discretion tri'tich has been given to the court must be exercised judiciously and it 12 20. should not be exercised in an orbitr<ry <r unreasonable manner just for makin9 the attendance of the accused for the «ikeof seeing him in the Court. When the accused himself ready to give an undertoking that he will not raise the question of prejudice to him then in a summons case ordinarily personol exemption of the accused tookin9 to his hard^iip and his eryagement as naiToted above by the Honfcle Apex Court thot the cowt while decidit^ the personal exemption application must take into consideration these factors. As everyone knows in our judicial system an adjournment in criminal proceeding is granted liberally aml by personal appewance the harosanent, wastage of time and money in attending the Courts i$ more rigwous punishnient than the punishment cwarded in the offence itself and that is why ot the tirae of the final judgment jn a criminal case the Courts <re generally taking into consideration the fact of harassment, financial loss and other relevant factors faced by the accused during the trial. The ultimate object of the criminal court' is to decide the criminal case expeditiously as early as pwsible cuwl Sf the ateence of the accused does not create any hindrance In the proceeding and in progress of the case like petty cases and summons coses then ordinarily the courl- should dispense with the personal attendance. The various provisions contained in the Crimtnal Procedure Code are in order to ensure that a fair and reas<md>le opportunity ^iould be given to the accused to defend his cas»os also to the prosecution to prove their case and no-one slwuld have any 9^90 that he has not been given proper