Case: M/S. Bhaskar Industries Ltd Vs. M/S. Bhiwani Denim &amp; Apparels Ltd.

3. 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 firsty 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.4. 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. 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 negativeOn the basis of the aforesaid analysis, I reach a conclusion that the impugned order of the trial Court being not in accordnace 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 aside6. 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 thet 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.

Reasoning: 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 revisable11. 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 nowThe 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.