M/S. BHASKAR INDUSTRIES LTD. versus M/S. BHIWANI DENIM AND APPARELS LTD. AND ORS.

Citation: [2001] SUPP. 2 S.C.R. 219 · Decided: 27-08-2001 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

·• • 
MIS. BHASKAR INDUSTRIES LTD. 
A 
v. 
MIS. BHIWANI DENIM AND APPARELS LTD. AND ORS. 
AUGUST 27, 2001 
[K.T. THOMAS AND K.G. BALAKRISHNAN, JJ.] 
B 
Criminal Law : 
Interlocutory order-Order passed by Magistrate on application for 
dispensing with personal appearance of accused-Question whether an order C 
is interlocuto1y order or not-Held, cannot be decided merely because the 
order was passed at interlocutory stage-Test laid down by Supreme Court 
explained-However, issue not decided for lack of material on record 
Revision-Order passed by Magistrate on application for dispensing D 
with personal appearance of accused-Issue regarding maintainability of 
revision neither raised before revisional court nor before High Court-Held, 
it is not permissible to raise the issue before·Supreme Court-Constitution of 
India, 1950-Article 136. 
Code of Criminal Procedure, 1973 : 
Ss.205, 317 and 273-Summons case-Power of Magistrate to dispense 
with personal appearance of accused-Held, it is within the judicial discretion 
E 
of Magistrate to dispense with personal appearance of an accused either. 
throughout or at a particular stage of proceedings in a summons case if 
Magistrate is satisfied that insistence on personal presence of accused would F 
inflict enormous sufferings on him and comparative advantage would be less-
In appropriate cases Magistrate can allow accused to make even first 
appearance through a counsel-Such discretion need be exercised in rare 
cases and Magistrate must take precautions as a matter of course. 
The appellant-company filed a complaint under s.138 of the Negotiable G 
Instruments Act, 1881 in the Court of Judicial Magistrate, Bhopal against a 
company having its office at Bhiwani in Haryana (accused No. 1 ), its 
Managing Director (accused No. 2) and 13 others who were living in Haryana, 
Delhi and Chandigarh. The Magistrate issued summons to the accused. The 
219 
H 
220 
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R. 
A summons issued to respondent-accused No. 2 having been received back 
unserved, the Magistrate issued bailable warrants whereupon accused No. 2 
filed an application for exemption from personal appearance. It was contended 
that the offence under s.138 of the Negotiable Instruments Act was relatively 
not a serious offence as it was made only a summons case and that the 
B insistence on physical presence of the accused would cause substantial 
hardships and sufferings to him. Pending application the Magistrate ordered 
him to be released on bail if arrested and directed him to be present in Court 
for purpose of furnishing security by executing a bond. All the accused 
challenged the order in a revision petition before the Sessions Judge, who set 
aside the order of the Magistrate without substituting it with any other 
C direction or order as regards accused No. 2 The complainant challenged the 
order of the Sessions Judge before the High Court, which declined to interfere. 
Aggrieved, the complaint filed the present appeal. 
It was contended for the appellant-complainant that the order of the 
Magistrate being purely an interlocutory one, the revision petition against it 
D was not maintainable. 
Allowing the appeal, the Court 
HELD : 1.1 Whether an order is interlocutory or not, cannot be 
decided by merely looking at the order or merely because the order was passed 
E 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 moved 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 
F interlocutory stage. 
Madhu Limaye v. State of Maharashtra, AIR (1979) SC 47 (19771 4 SCC 
551; V.C. Shukla v. State through CBI, AIR (1980) SC 962 1980 Supple. SCC 
92; Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., (199913 SCC 
134 and K.K. Patel and Anr. v. State of Gujarat and Anr., [2000) 6 SCC 195, 
G relied on. 
1.2. 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, the question is left 
undecided. The appellant did not raise any such contention before the High 
H Court and hence it is not permissible for him to raise it for the first time in 
BHASKAR INDUSTRIES LTD. 1•. 

Excerpt shown. Read the full judgment & AI analysis in Lexace.