first respondent in the respective two revisions that the learned Magistrate has
exercised the power of judicial discretion under Section 205 Cr.P.C. therefore,
for this Court while sitting in revision, there is no practically nothing to
interfere
or to modify or to set aside any of the three conditions and sought for
dismissal
of the respective two revisions also on the ground that it is prohibited from
entertaining on the bar under Section 397(2) Cr.P.C. being interlocutory in
nature.
05. Heard the learned counsel for the petitioners and the learned counsel
for the first respondent, in both the revisions. Perused the material
available
on record.
06. Both the revisions are taken up for common disposal and now the
common points that arise for consideration are,
01. Whether the orders, dated 13.08.2014, in Crl.M.P. Nos.1430 and 1435
of 2014, passed by the learned Magistrate in allowing the application
under Section 205 Cr.P.C. imposing the conditions for appearing to
examinations under Sections 251 Cr.P.C. and 313 Cr.P.C. and also as
and when required for the necessity is unsustainable and outside the
purview of the exercise of judicial discretion and whether the
impugned order is interlocutory in nature no way effects rights of the
parties to the lis and the very revisions are not maintainable
02. To what relief
POINT NO.1:
07. Coming to the very maintainability of the revisions, no doubt, Section
397(2) of Cr.P.C. speaks, the powers of revision conferred by Sub-Section (1)
shall not be exercised in relation to any interlocutory order passed in any
appeal,
enquiry, trial or other proceeding. The impugned order is, if not, in trial,
once
summons are served and accused appeared either in person or through Advocate,
it is being a summary procedure under section 143 n.i. act, trial commenced for
all practical purposes subject to the Section 251 Cr.P.C. examination.
08. Now coming to the core, as to the orders impugned are interlocutory
in nature or not; law is fairly settled from the expression of the Apex Court in
M/S. Bhaskar Industries Ltd vs M/S. Bhiwani Denim & Apparels Ltd. that
the criteria to decide whether the order is interlocutory in nature or not, is
not to
decide from mere look of the order but consequent on its result. Needless to
say
what is an interlocutory order in nature is well laid down by the Apex Court in
Amarnath v. State of Haryana , Madhulimaye v. State of Maharastra ,
Mohit @ Sonu v. State of U.P. In Rajkumar v. State , wherein it was
distinguished power of revision and inherent powers of High Court. In fact, in
Municipal Corporation of Delhi v. Ram Kishan Rahatogi it was held that on
the scope of revision or inherent power, the controversy is no longer res
integra
as the controversy has been set at rest by Madhulimaye (3 Judges Bench) supra.
Further, when there is a specific provision that is applicable, inherent power
cannot invoke to exercise.
09. From the above, so far as the lis covered by the revision concerned,
it
is not a mere an order of interlocutory in nature as it effects the right of the
party.
Thereby the revision is maintainable and the bar under Section 397(2) Cr.P.C.
has no application as it effects the right in insisting the personal appearance
and
whether insisting personal appearance is sustainable or not, no doubt, is
required
to be decided herein now.
10. Coming to the scope of the revision under Section 397(1) of Cr.P.C.,
it
is for the purpose of satisfying as to the correctness, legality or propriety of
any
finding, sentence or order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court. Here it is not confined to only illegality
or
impropriety but even irregularity or correctness of the order to decide by
sitting
in revision within the limited scope, but for to say, the scope of the revision
to
the Court of Session under Section 397(1) Cr.P.C. is different to the scope of
revision before the High Court as per Section 397 R/W Section 401 Cr.P.C.,
where it speaks the power conferred on a Court of Appeal also can be exercised
in deciding the revision.
11. Coming to the scope of Sections 205, 251 and 313 of Cr.P.C.; (a)
Section 313(1) of Cr.P.C. mandates personal appearance of the accused for
purpose of enabling him personally to explain any circumstances appearing in
the evidence against him in an enquiry or trial to answer. No doubt, the
proviso
to Section 313(1) enables the Court to dispense with the personal appearance of
the accused and it may also dispense with the examination of the accused. It is
to
say either exemption from personal appearance or even examination under
Section 313, otherwise, mandatory to dispense with is depending upon facts of
the case, as to whether there is any incriminating evidence or not whether
personal appearance can be dispensed with, if somebody represents either as a
GPA holder or special vakalath holder or the like, as the case may be.
(b) So far as examination under Section 251 Cr.P.C. concerned, as the NI
Act proceedings are even summary in nature, the procedure required to adopt
under section 143 n.i. act, the learned Magistrate proceeds as a summons case
by giving C.C. Number. The procedure for summary trial, to invoke Section 251
Cr.P.C. examination in questioning after his appearance concerned, where the
accused appears or brought before the Magistrate, the particulars of the offence
of which the accused shall be stated to him and shall be asked to him whether he
pleads guilty or whether he has defence to make it, it shall not be necessary to
frame formal charge. So far this examination and the scope of Section 251
Cr.P.C. is concerned, it is to be read with invariably Section 205 Cr.P.C. the
word accused appearance need not be confined to personal appearance, it can
be even through GPA holder or special vakalath holder. If we read with Section
205 Cr.P.C. if it is brought before the Court invariably the accused must be
brought before the Court for the examination under Section 251 Cr.P.C. In such
event, examination in person is only limited, as to whether he pleads guilty or
claims to be tried or any defence.
(c) Section 205 Cr.P.C. confers that (1), 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. (2) But the
Magistrate inquiring into or trying the case may, in his discretion, at any
stage of
the proceedings, direct the personal attendance of the accused, and, if
necessary,
enforce such attendance in the manner hereinbefore provided.
12. Undisputedly, the learned Magistrate after taken cognizance of a
private complaint under Section 200 Cr.P.C. read with 190 Cr.P.C., issued
summons to the accused, for which he appeared through advocate or through
special vakalath holder under Section 205 Cr.P.C. and it is, on contest, allowed
to
the above extent, more particularly, referring to TGN Kumar (supra) and other
expressions including general guidelines issued by the Apex Court regarding
disposal of N.I. Act cases under section 143 of n.i. act as a summary trial.
The
expression of the Apex Court reported in Indian Bank Association and others
v. Union of India and others , in fact, the case referred above has no more
relevancy so far as the present facts concerned, but for, to say there was in
guideline No.23(4) observed in giving direction that the Court should direct the
accused, when he appears to furnish a bail bond, to ensure his appearance
during trial and ask him to take notice under Section 251Cr.P.C. to enable
him
to enter his plea of defence and fix the case for defence evidence, unless
an
application is made by the accused under Section 145(2) Cr.P.C. for re-
calling
a witness for cross-examination. There it speaks relating to 251 Cr.P.C.
examination and did not consider the scope regarding Section 205 Cr.P.C. and
thereby application under Section 205 Cr.P.C. and dispensing with of personal
appearance and in such event for 251 Cr.P.C. examination, it can be done
through the special vakalath holder was not fallen for consideration in the
above
guideline/ direction.
13. From this, now so far as Section 205 Cr.P.C. examination concerned,
at the cost of repetition, the Apex Court in TGN Kumar (supra), more
particularly at paras 7 to 9 categorically observed that, the discretion
conferred
on the Court to exempt the accused from personal appearance till such time the
personal appearance is considered by the Court to be unnecessary during trial.
Here from that observation now to consider once the accused is permitted
through special vakalath under Section 205 of Cr.P.C., the personal attendance
required to be insisted is where necessary. So far as Section 251 Cr.P.C.
examination concerned, that too when the special vakalath holder is willing to
answer the questions that are put to the accused under Section 251 Cr.P.C.
examination, the learned Magistrate did not consider this aspect, even the
expression of Apex Court in TGN Kumar(supra) mandates that once permitted
under Section 205 Cr.P.C. the personal appearance shall be exempted of course
where not necessary during enquiry or trial.
14. Here when the special vakalath holder advocate is thereon permitted
and he is willing to answer questions that are put to the accused under Section
251 Cr.P.C. as to whether he pleads guilty or enters his defence; there is
practically no necessity in exercise of the judicial discretion for insisting
personal
appearance of the accused, so far as Section 251 Cr.P.C. examination concerned.
Thereby, to that extent the trial court orders is not correct and requires to
revise
by sitting in revision within the scope of Section 397(1) read with 401 Cr.P.C.
Accordingly, the point No.1 is answered.
Point No.2:
15. In the result, while modifying the order of the learned Magistrate by
setting aside the portion in so far as condition to appear in person to answer
Section 251 Cr.P.C. examination concerned, now by dispensing with and
permitting to answer through advocate special vakalath holder; in other
respects,
the order of the learned Magistrate confirmed as holds good. Needless to say
the
lower court as observed above within its discretion can always insist for any
personal appearance of accused after 251 Cr.P.C. examination in the course of
enquiry/ trial at any stage.
16. It is also needless to observe that the lower court is supposed to
take
care of the requirement of execution of bond by the accused under Section 88
R/w. Section 89 Cr.P.C. A bond shall be insisted and such bond if disobeyed in
future, the accused has to face penal consequences as contemplated. Thereby the
accused through the special vakalath holder shall execute said personal bond
under Section 88 R/w. Section 89 Cr.P.C. by next hearing or within such time
being granted by the Court for said purpose.
17. The revisions are accordingly partly allowed. Miscellaneous petitions
pending, if any, in this revision shall stand closed.
__________________________
Dr. B. SIVA SANKARA RAO
September 09, 2014