TMI Blog2001 (8) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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