Shree Chandrashekhar, J.:— The petitioners are accused in Complaint Case No. C-195 of 2012.
2. This was a dispute like thousands of other disputes between an employee and the employer, one claiming non-payment of salary and the other alleging misconduct and misappropriation of the Company's fund in course of the employment that led to filing of a written complaint dated 14,09.2011 by Vijay Mohan Prasad to the police. Doranda (Argora) PS Case No. 369 of 2011 was registered against Ashuthosh Kumar Sinha under sections 420, 467, 468, 471, 427,379 and 504 of the Penal Code, 1860 on the allegation that the accused who was employed as Sales Executive with Xena Technologies Private Limited entered into fraudulent transactions with different clients and caused financial losses to the Company. In Doranda case, the police has submitted charge-sheet against Ashutosh Kumar Sinha and cognizance of the offence under sections 420, 467, 468, 471, 427, 379 and 504 of the Penal Code, 1860 was taken by the learned Magistrate on 20.04.2012. It is said that Ashutosh Kumar Sinha hit back by filing Complaint Case No. C-195 of 2012, the present case, alleging threat and coercion by the petitioners who were his employers, when he demanded payment of full salary and his original certificates. In a separate proceeding the petitioners have approached this Court in Cr.M.P. No. 1328 of 2014 challenging the entire criminal proceedings in Complaint Case No. C-195 of 2012 and the said quash petitioin is still pending for final disposal. In the enquiry under section 202 of the Criminal Procedure Code (hereinafter. referred to as the Code) the complainant gave his statement on solemn affirmation and examined three witnesses. Tha learned Magistrate took cognizance of the offence under sections 406, 506 and 504 of the Penal Code, 1860 and the summons Issued on 11.04.2014 to Vijay Mohan Prasad and Reshma Kanti Lal Vora @ Rashmi Srivastava were returned with an endorsement that the accused have refused to accept the summons- the other two accused, namely, Nitant Mohan Sriv???stava and Sushant Mohan Srivastava wave not summoned to face the trial. A petition dated 02.07.2014 was filed on behalf of Vijay Mohan Prasad seeking exemption from the personal appearance on the ground that he is a busy businessman. Reshma Kanti Lal Vora, the petitioner no. 2, also moved a similar application under section 205 of the Code on the ground that she was residing in Angola, South Africa. Now, the petitioners, through supplementary affidavit dated 11.01.2021, would submit that the petitioner no. 1 aged about 76 years has undergone Angioplasty and the petitioner no. 2 after her return from Angola is residing at Pune and she has to look after her 10-year-old daughter. In opposition to the applications under section 205 of the Code, the complainant took a position that the Judicial discretion to dispense with the personal appearance of an accused can be exercised only in rare instances, and when the Magistrate finds it necessary in the interest of justice. It was pointed out that both the accused are residents of House No ???2/A, A.G. Cooperative Colony, Ranchi which was the address disclosed by the a???used themselves in the Vakalatnama executed by them and, moreover, Vijay Mohan Prasad was appearing in the mediation sessions in connection to G.R. No. 4599 of 2011 On the other hand, the accused put forth a plea that insistence on their personal presence and, that too, at the initial stage of the trial would inflict enormous harassment and tribulations to them.
3. The aforesaid applications filed by the accused under section 205 of the Code were dismissed by a common order dated 24.03.2015.
4. The learned Magistrate has held as under:—
5. The petitioners have assailed legality of the order dated 24.03.2015 by filing criminal revision petition under section 397 read with section 401 of the Code.
6. A preliminary objection on maintainability of the revision petition has been taken by the complainant, on the ground that the impugned order dated 24.03.2015 is purely interlocutory in nature and thus not revisable as being barred under sub-section (2) to section 397 of the Code.
7. The provisions under section 397 of the Code read as under:—
“Section 397. Calling for records to exercise of powers of revision.— (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.— All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revision conferred by sub-section-(1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.”
8. The Criminal Procedure Code, 1898 conferred wide powers to the High Court to interfere with the orders passed in criminal cases by the sub-ordinate Courts and under the new Code the revisional powers of the Sessions Court and the High Court are preserved under section 397(1), but at the same time by introducing subsection (2) it was provided that 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 legislative intendment in introducing subsection (2) in the Code was to curb delays in the criminal trials and not to put restrictions on the powers under section 397(1), however, on the basis of a plea couched in the language of sub-section (1) to assail an order as causing injustice or prejudice to the accused all kinds of orders came to be challenged and in the process the object behind enacting sub-section (2) appeared to be frustrated by such litigations. So came the vexed question before the Courts, repeatedly, what constitutes an interlocutory order.
9. The term “interlocutory order” has been defined in the dictionaries to mean not final; made or done during the progress of an action; an order other than final judgment, and similar expressions. The Halsbury's Laws of England refers to an interlocutory order as an order merely on a matter of procedure and Corpus Juris Secundum says that an interlocutory judgment is one which reserves or leaves some further question or direction for future determination. The judicial opinion was never divided as to what is a final order and for quite some time the opinion of the English Judges that all orders which are not final are interlocutory was accepted by the Courts in India.
10. In “S. Kuppuswami Rao v. King”, AIR 1949 FC 1 the observations of Sir George Lowndes, V.M. Abdul Rahman v. D.K. Cassim & Sons, AIR 1933 PC 58 were approved by the Federal Court and it was held that the test of finality is whether the order finally disposes of the rights of the parties. Kuppuswami Rao was posted as Taluq Head Accountant at Madura Sub-Treasury and by virtue of a general notification he was exercising the powers and performing the functions of a licensing officer under the Madras Motor Vehicles Taxation Act, 1931. He was put on trial on the charge under sections 420, 468, 409, 477 A and 120-B of the Penal Code, 1860 for committing criminal breach of trust by dishonestly issuing motor licences without collecting the full tax amount from the-licencee. He was also charged for signing the false certificates of payment of tax and falsification of the accounts. In the trial, after 37 witnesses were examined, he put up two objections one of which was that without the consent of His Excellency the Governor under section 270(1) of the Government of India Act, 1935 the prosecution against him could not have been launched. The second objection raised by him was based on section 197 of the Code read with section 271 of the Government of India Act, 1935; that he was a Government servant who was accused of committing an offence while acting in the discharge of his official duty and, therefore, without sanction for prosecution he cannot. be tried for the alleged offences. The first objection in respect of the charge under section 120-B of the Penal Code, 1860 was upheld by the Magistrate and the revision petition filed by him before the High Court was disposed of with a remand order because both parties conceded before the High Court that evidence was required to be taken to decide the issues raised by the accused. On remand, the Magistrate did not find any fresh ground to reconsider his earlier order and reiterated that the trial against Kuppuswami Rao shall continue in respect of the charge under section 120-B of the Penal Code, 1860. The High Court did not interfere with the order of the Magistrate but granted a certificate under section 205(1) of the Government of India Act, 1935, which provided that an appeal shall lie from “any judgment, decree or final order” of a High Court.
11. It was in the aforesaid context that the Federal Court embarked upon an exercise to determine the test of finality. Several judgments of the Court of Appeal, Privy Council and Federal Court are noticed in “S. Kuppuswami Rao” and discussions in the judgment are primarily focussed around the meaning given to the expression, final order” by the English and Indian Courts. One judgment which requires special mention for the opinion of Lord Esher M.R. and other two Lord Justices was delivered in “Salaman v. Warner”, [1891] 1 Q.B. 734. Lord Esher, M.R. has interpreted the expressions “final order” and “interlocutory order in the following words:—
“If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I “think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.”
12. Fry, L.J. has rendered a similar opinion though couched in a different language, thus:—
“I conceive that an order is ‘final’ only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely I think that an order is ‘interlocutory’ where it cannot be affirmed that in either event the action will be determined.”
13. Lopes, L.J. also concurred with them to the extent he said that “a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties”.
14. The judgment of the Court of Appeal in “Salaman” which was followed by “Bozson v. The Altrincham Urban District Council”, [1903] 1 K.B. 547 that an order is final if it finally disposes of the rights of the parties was approved by the Privy Council in “Firm of Ramchand Manjimal v. Goverdhandas Vishindas Ratanchand”, AIR 1920 PC 86. This was a case instituted on the allegations of breach of certain terms of the contract for the sale of cotton. There was an arbitration clause in the contract and with a view to enforce the said clause the defendant filed an application under section 19 of the Indian Arbitration Act, 1899 for a stay of the proceedings. The Court of original jurisdiction had granted an order of stay but on appeal the Court of Judicial Commissioner at Sindh reversed the order of stay. On an application made by the defendant for a certificate under section 109(a) of the Civil Procedure Code, 1908 the Court of Judicial Commissioner took the view that the order refusing a stay was the final order. Lord Viscount Cave who delivered the judgment for the Board held that the order refusing stay did not attain the character of a final order because by such order rights of the parties were not finally disposed of but left them to be determined by the Court in the ordinary way. For more than a decade “Firm of Ramchand Manjimal” evoked different opinions and the controversies were finally put to rest in “V.M. Abdul Rahman” (supra). A suit was instituted for a claim of Rupees five lakhs by way of damages; V.M. Abdul Rahman was one of the defendants. In the trial, the defendants on their application were adjudicated insolvents and the proceedings were adjourned for one month to give time to the Official Assignee to consider whether he would proceed with the suit on behalf of the creditors. The Official Assignee asked the insolvents to furnish security but they failed to do so and the suit was dismissed. On appeal, the decree was set-aside and the suit was remanded to the original Court for trial on the merits. When the matter reached before the Judicial Committee of Privy Council a preliminary objection was taken that the order of the Appellate Court was neither a decree nor a final order within section 109(a) of the Civil Procedure Code, 1908 and, therefore, not appealable under section 110. The objection was upheld and it was held that the issue stood concluded by the decision in “Firm of Ramchand Manjimal”.
15. Sir George Lowndes adverted to and discussed the judgment in Firm of Ramchand Manjimal in the following manner:—
“Lord Cave in delivering the judgment of the Board laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality is whether the order “finally disposes of the rights of the parties” and he held that the order then under appeal did not finally dispose of those rights, but left them to be determined by the-courts in the ordinary way.” it should be noted that the Appellate Court in India was of opinion that the order it had made “went to the root of the suit, namely the jurisdiction of the Court to entertain it,” and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under section 109(a) of the Code.”
16. The discussions in “S. Kuppuswami Rao” have proceeded in the backdrop of the aforesaid judgments and the Federal Court has finally held that:—
“19. The question then is whether in the present criminal case the order is a “judgment, decree or final order of the High Court”? It is clearly not a decree. It, is also not a judgment, as it is only an interlocutory, order made on a preliminary objection in the course of a criminal trial. It is also not a final order, as the order is not on a point which, decided either way, would terminate the matter before the Court finally. In the words of Sir George Lowndes to constitute, a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way. It is therefore clear that the order made on the criminal revision application by the Madras High Court is not a final order of judgment within the meaning of Section 205(1), Constitution; Act. Indeed, if “judgment” were to mean or include an interlocutory order, the words “final order” in Section 205(1), Government of India Act, 1935, will be superfluous. The preliminary objection is therefore upheld and the appeal is dismissed.”
17. The growing need for a comprehensive revision of the old Code took shape in the Criminal Procedure Code, 1973 which brought in significant change in section 397. The recommendations of the Law Commission in its 14th and 41st reports were accepted by the Government and sub-section (2) was introduced in the Code with a clear indication in clause (d) of paragraph 5 of the Statement of Objects and Reasons that the powers of revision against interlocutory orders are taken away because it has contributed to the delays in disposal of the criminal cases. The expression “interlocutory order” as appearing in sub-section (2) of section 397 came for an exhaustive discussion in “Amar Nath v. State of Haryana”, (1977) 4 SCC 137. In the information reporting a death; Amar Nath and others were made accused but after the investigation a final report under section 173 of the Code was submitted against few of them- Amar Nath was also not sent up for the trial; and the Magistrate set those accused free after accepting the report. The revision petition filed by the complainant was dismissed and a regular complaint filed by him also came to be dismissed against the non charge-sheet accused persons. In revision, the Sessions Judge remanded the case to the Judicial Magistrate for further enquiry, who, however, straightway issued summons to the accused. The High Court dismissed the petition-filed under section 482 read with section 397 of the Code holding that (i) the revision to the High Court was barred under sub-section (2) to section 397, and (ii) an order which is not revisable cannot be quashed under section 482.
18. The Hon'ble Supreme Court has held as under:—
“6………. The main question which falls for determination in this appeal is as to what is the connotation of the term “interlocutory order” as appearing in subsection (2) of section 397 which bars any revision of such an order by the High Court. The term “interlocutory order” is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Civil Procedure Code, Letters Patent of the High Courts and other like. statutes. In Webster's New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term “interlocutory order” in section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.”
19. Another important judgment on the nature, scope and extent of the revisional powers was delivered in “Parmeshwari Devi v. State”, (1977) 1 SCC 169. Smt. Patashi Devi, the complainant, was seeking a direction to the accused to file the original deed of dissolution of partnership, the possession of which was denied by the accused. The Court then made an order summoning Smt. Parmeshwari Devi to appear with the document. The application of Smt. Parmeshwari Devi for revision before the Additional Sessions Judge was rejected and the High Court also did not interfere with the order of the Magistrate summoning her to produce the document.
20. The Hon'ble Supreme Court has held as under:—
“7. The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-section (2) of Section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights.”
21. Soon thereafter came the judgment in “Madhu Limaye v. State Of Maharashtra .”, (1977) 4 SCC 551 which approved “Amar Nath” on the point that the orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders. This time “S. Kuppuswami Rao” which perhaps was not brought to the notice of the Court in “Amar Nath” was examined by the Hon'ble Supreme Court. It was held that the test laid down in “S. Kuppuswami Rao” that an order can be said to be a final order only if it determines the action cannot be accepted as a proposition of universal application.
22. In “Madhu Limaye” the Hon'ble Supreme Court has rendered the following-opinion for not labeling every order which does not terminate the proceedings as interlocutory order:—
“‘13………… On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the Legislature was not to equate the expression “interlocutory order as invariably being converse of the words “final order”. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppusami's case (supra), but, yet it may not be an interlocutory order- pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397(2). It is neither advisable, nor possible to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of order would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order which we are concerned in this case, even though it may not be final in one sense,’ is surely not interlocutory so as to attract the bar of sub-section (2) of section 397. In our opinion it must be taken to be anorder of the type falling in the middle course.”
23. But these judgments did not put a lid on the controversy regarding ambit, scope and extent of the restrictions under sub section (2) to section 397 of the Code and the issue has continued to engage the Courts in the past for about 50 years. In “K.K. Patel v. State of Gujarat”, (2000) 6 SCC 195 the Hon'ble Supreme Court has held that in deciding whether an order challenged is interlocutory or not the sole test is not whether such order was passed during the interim stage rather the feasible test is whether by upholding the objections raised by the party it would result in culminating the proceedings then any such order would not be interlocutory. in nature as envisaged in section 397(2) of the Code in “V.C Shukla v. State Through C.B.I .”, 1980 Supp SCC 92 and again in “Asian Resurfacing of Road Agency (P) Ltd v. Central Bureau of Investigation”, (2018) 16 SCC 299 : [(2018) 2 JBCJ 235 (SC)] the entire gamut of law on the restrictions imposed by sub-section (2) to section 397 of the Code was discussed by the Hon'ble Supreme Court, before holding that the law laid down in “Madhu Limaye” still holds the field.
24. A search through the voluminous law reports provides valuable insights on section 397 of the Code and one can see that the following illustrative cases in which the orders were held interlocutory “ : (i) An order granting police remand- “State v. N.M.T. Joy Immaculate”, (2004) 5 SCC 729; (ii) An order rejecting an application for summoning a document or a witness for further cross-examination- “Sethuraman v. Rajamanickam .”, (2009) 5 SCC 153; have also proceeded on the similar lines. However, the case-laws do not provide a solution and each case has to be dealt with and decided in the facts and the circumstances obtaining therein. The discussions in “Amar Nath”, “Madhu Limaye”, “Asian Resurfacing” and other cases provide valuable guidelines but in some cases' that may not be sufficient. Whether, an order is interlocutory or intermediate; in ‘my opinion, the context, subject matter and different provisions of the Statute under which the order in controversy was passed have to be kept in mind. The safest guide to decide whether the order under challenge falls within the mischief of sub-section (2) in section 397 of the Code is to see if serious prejudice-but, not every kind of prejudice; has been caused to the accused or it has occasioned a failure of justice. In both the circumstances, the order though not a final order cannot be said to be an interlocutory order.
25. The learned counsel for the petitioners has relied on the judgment in “Amar Nath” to contend that section 205 of the Code which provides reprieve from personal appearance of the accused is a matter of moment and the order declining the application under section 205 of the Code cannot be said to be interlocutory order so as to be outside the purview of revisional jurisdiction of the High Court.
26. Section 205 of the Code reads as under:—
“205. Magistrate may dispense with personal attendance of accused.— (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.”
27. The primary concern of the criminal Court is administration of the criminal justice and to achieve that purpose the Code has made specific provisions and provided certain powers to the Court. The provisions in the Code are intended to achieve the constitutional philosophy that freedom is the most cherished right of an individual-fair and speedy trial is part of Article 21 of the Constitution of India. Chapter XIV of the Code deals with commencement of the proceeding before the Magistrate. A Magistrate taking cognizance of an offence shall issue summons in summons-case and a warrant or a summons in a warrant-case for the attendance of the accused under section 204. Section 205 vests discretion in the Magistrate to dispense with personal attendance of the accused and permit him to appear by his pleader. In petty offences the Magistrate is empowered to record the plea of the accused even in his absence by a counsel duly authorized by him. A bare reading of the provisions in section 205, particularly the opening line, removes any doubt on the powers of the Magistrate that in appropriate cases he can allow an accused to make even the first appearance through a counsel. There is no controversy that the provisions of section 205 are intended to facilitate the proceedings before the Magistrate, the powers conferred upon the Magistrate in section 205(1) of the Code is discretionary and the Magistrate has to consider the question of dispensing with the personal appearance of the accused in a reasonable manner.
28. In “Sumit Bose @ Sumit Ranjan Bose v. The State of Bihar”, 2002 SCC OnLine Pat 603, on which the learned counsel for OP No. 2 has placed heavy reliance, the learned Single Judge has held that an order under section 205 of the Code is an intermediate or quasi final order and not purely interlocutory in nature.
29. In “Sumit Bose” the learned Single Judge has held as under:—
“6. Although discussions in the case of Rajendra Kumar Sitaram Pandey (supra) were in the context of an order of the Magistrate directing issues of process, it is for the principles for deciding the nature of an order whether it is interlocutory or not that strong reliance was placed upon the aforesaid judgment. On the touchstone of aforesaid principles decided by the Apex Court an order under section 205 of the Code has to be held to be an intermediate or quasi final order and not purely interlocutory in nature. This inference appears to be unavoidable after going through the provisions of the Code which confer certain rights and liabilities upon the accused which are consequent upon the outcome of a prayer under section 205 of the Code. An accused does not have a vested right that he must get the benefit of section 205 and grant of such benefit is a matter of discretion to be exercised by the Magistrate after properly considering several relevant aspects which may vary from case to case. How such discretionary power has to be exercised has been dealt with by two decisions of this Court in a detailed and lucid manner for which reference may be made to 1979 BBCJ 437 (Ravi Singh v. The State of Bihar) and (1998) 1 PLJR 502 (Ram Harsh Das v. State of Bihar). However, exercise of discretion by itself will not render the resultant order as purely interlocutory. The effect of the order has to be examined to find out whether the order decides or touches the important rights or liabilities of the parties or not. In a case under section 205 of the Code the right of the accused to be represented through counsel on routine dates when the court does not require his presence and his liability to be bound- by the action of his counsel are certainly dependent upon the nature of the order passed and hence, such an order cannot be said to be an interlocutory order so as to attract the bar of section 397(2) of the Code.”
30. On the nature of an order passed under section 205 of the Code I feel difficulty to adopt the view taken by the learned Single Judge in “Sumit Bose”. In my opinion, an order granting or refusing to grant exemption from personal appearance is not an order which affects any substantial right of the accused. The grant of exemption from personal appearance is purely discretionary and the accused has no vested right to seek exemption from personal appearance. In the context of the tests indicated in “Amar Nath” and “Madhu Limaye”, it is pertinent to indicate that ‘an order granting or refusing to grant exemption from personal appearance does not affect the trial much less terminates the trial
31. The scheme of the Code is that the trial in a criminal case should be held in presence of the accused unless his appearance is dispensed with either by express or implied provision of the Cbde. The underlying principle in the requirement of presence of the accused during the trial is based on the principle of natural justice- no one should be condemned unheard. There are specific provisions in the Code for dispensing with the personal appearance of the accused at different stages of the proceedings. There are provisions in the Code which provide that evidence can be recorded in absence of the accused or the report of certain persons may be admitted into evidence even when a report is not prepared in presence of the accused. The personal appearance of the accused can be dispensed with by the Magistrate at the initial stage under section 205 when a process is issued and during the trial under section 317 the Court can dispense with the personal appearance of the accused for the ends of justice or when the accused persistently disturbs the proceedings of the Court. Section 273 of the Code provides that all evidence taken in the course of 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. Of course, subject to the exceptions provided therein.
32. In “Basil Ranger Lawrence v. Emperor”, AIR 1933 PC 218 the Judicial Committee has observed as under:—
“it is an essential principle of our criminal law that the trial of an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence, there is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is invoidable, (inviolable?) unless possibly the violent conduct of the accused himself renders it lawful to continue in his absence. Though the case went up to their Lordships from Nigeria, the general principle underlying their decision applies to all criminal trials. Here, we have no such division of crime as felony and misdemeanour. The serious offences, however, are warrant cases, more serious of which are exclusively triable by Sessions Court, while the less serious cases are summons cases and some of them are even triable summarily………………”
33. Every order passed in course of an enquiry, trial or other legal proceedings cannot be said to be an order substantially affecting the rights of an accused. If an order refusing the application for dispensing with personal appearance of the accused causes harassment or becomes onerous for the accused, that by itself is not a ground to entertain revision against the order under section 397(1) of the Code. The order cannot be held to have caused prejudice to the accused and a challenge on merits by the accused to the order rejecting the application under section 205 of the Code may lie elsewhere but not under section 397(1) of the Code. The Criminal Procedure Code as the expression would indicate lays down how enquiry or trial in a criminal case shall be conducted. In major parts, it does not confer any substantive right in the accused and non-observance or breach of every procedure to be followed by the police/prosecution does not nullify the end result. The primary object is to ensure that the trial is conducted in a fair manner, and; the accused, the witnesses and the victim are offered fair opportunity to put forth their plea. The provisions under the Code are founded on the principles of natural justice and unlike in other proceedings the accused must show that he has suffered such prejudice which has resulted in miscarriage of justice. There is nothing in section 205 which would show that a right of any kind is conferred on the accused in the matter of grant of exemption from personal appearance. In “V.C. Shukla” the Hon'ble Supreme Court has observed that the revisional power cannot be invoked by the aggrieved party as of right, and all that it does is to empower the High Court or any Sessions Judge to call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, and as to the regularity of any proceeding of such inferior Court. The Court has held that the revisional power is discretionary and is, at any rate, not available to the aggrieved party as of right.
34. I, therefore, conclude that an order under section 205 of the Code refusing the application for dispensing with personal appearance of the accused is an interlocutory order and while so a revision against that order is barred under subsection (2) to section 397 of the Code.
35. Lastly, the petitioners have pleaded in their written submissions that they may be permitted to convert this criminal revision into a petition under section 482 of the Code. But, in my opinion, no such indulgence is warranted in this case. This criminal revision petition was filed on 13.05.2015 and by an order dated 13.10.2015 a coordinate Bench of this Court ordered that no coercive steps shall be taken against the petitioners in connection to Complaint Case No. C-195 of 2012, till appearance of OP No. 2. On 06.11.2017, OP No. 2 entered appearance through his counsel and hearing of criminal revision petition was adjourned by two weeks to enable him to file counter-affidavit. It was further ordered that the interim order granted by this Court shall remain in force. Thereafter, for more than three years this criminal revision petition was not listed for hearing. It was only at the instance of the Court directing the Registry to post all criminal revision petitions in which interim orders were passed that this criminal revision petition was listed before me on 04.12.2020. On that day, the learned counsel for OP No. 2 raised a grievance that the proceedings in Complaint Case No. C-195 of 2012 has remained stalled on the pretext of pendency of this criminal revision petition, but hearing of this petition was to be deferred on the ground of personal difficulty of the learned counsel for the petitioners. There is nothing on record to suggest that the petitioners have diligently prosecuted this petition rather it is apparent that they have delayed the trial while enjoying the interim order passed by this Court. The proceedings in this revision petition put a big question mark on the bonafide of the petitioners and there are. technical and other procedural difficulties in allowing the prayer- a question about right of hearing of OP No. 2 and delay and latches on the part of the petitioners would also arise. Criminal Revision No. 559 of 2015 is held not maintainable and, accordingly, dismissed.
36. Let a copy of the judgment be transmitted to the Court concerned through ‘FAX’.
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