Geetanjali Woolens Pvt. Ltd. And ... vs Pearl Inter Continental
2003 Latest Caselaw 350 Del

JUDGMENT

O.P. Dwivedi, J.

1. This order shall govern the disposal of two connected revision petitions being Crl. Rev. 697/2002 & Crl. Rev. 698/2002. Both revision petitions are directed against the impugned order dated 25th June, 2002 passed by Shri Rajender Kumar, MM, Delhi under Section 205 read with Section 317 Cr.P.C.

2. Briefly narrated, the facts leading to these revision petitions are that the respondent herein filed a criminal complaint under Sections 405/406/420/120-B, IPC and also under Section 193, IPC against the petitioners. After recording the pre-evidence, learned Magistrate summoned the petitioners under Sections 405/406/420/120-B. IPC by order dated 2nd June, 2001. When the case was taken

up on 25th June, 2002 application for permanent exemption from personal appearance was filed on behalf of accused persons namely Surinder Kumar Goel and Virender Goel who are petitioners No. 2 and 3 in these revisions petitions. It was pleaded in the application that the accused are resident of Indore and Mumbai and hence it is very difficult for them to appear on each and every date. So they may be exempted from personal appearance. Learned MM granted them exemption from personal appearance for the next date with the observation that there is no ground for permanent exemption.

3, Feeling aggrieved, petitioners have preferred these revision petitions.

4. I have heard learned counsel for the parties and perused the record.

5. At the very outset, it has been contended by learned counsel for the respondent that the impugned order is purely interlocutory in nature. The rejection or acceptance of the plea of the accused for permanent personal exemption would not conclude any particular proceedings. The test to judge whether a particular order is interlocutory or not, is whether upholding/rejecting any plea raised by a party, would result in culminating the proceedings? if it does, it will not be an interlocutory order. Reference in this connection may be had to a decision of the Apex Court in the case of Madhu Limaye v. State of Maharashtra, , Rajendra Kumar Sitaram Pande v. Uttam, 1999 SCC (Crl) 393 and K.K. Patel v. State of Gujarat, 2001 SCC (Crl) 200. The impugned order is purely interlocutory in nature. Therefore in view of Section 397(4), Cr.P.C., these revision petitions are not maintainable.

6. Learned counsel for the petitioner on the other hand has relied on a decision in the case Bhaskar Industries Limited v. Bhawani Denim & Apparels Limited, . In para 19, Supreme Court has observed as under:-

Para 19 : The position, therefore, boils 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 on him, and the comparative advantage would be less. Such discretion need be exercised only in rate instances where due to the far distance at which the accused resides or carries on business or an account of any physical or other goods reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interest 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.

7. It is obvious that observations made by the Supreme Court in para 19 of Bhaskar Industries Limited (supra) would not govern the situation in the present case. Those observations were made by the Apex Court in relation to proceedings in a summons case. The present proceedings relate to a warrant trial. Perusal of the record shows that learned MM has been granting exemption from personal appearance of the accused when their personal appearance was not thought to be

necessary. Obviously, no permanent exemption can be granted in warrant trial because all the accused persons are required to be necessarily present at the stage of framing of charge and at the stage of evidence also if personal identification is necessary. It does not appear from the trial court record that learned MM has acted capriciously in refusing to grant permanent exemption. Therefore, no ground for interference is made out. In the result, both the revision petitions fail and are hereby dismissed.

8. LCR be sent back.