Delhi District Court
Rinky Rastogi vs . State Of Nct Of Delhi & Ors. on 7 October, 2022
Rinky Rastogi Vs. State of NCT of Delhi & Ors.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 05, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI
CR NO.: 51/2022
UNIQUE CASE ID NO.: DLCT010126412022
IN THE MATTER OF :
Rinky Rastogi,
W/o Anukool Rastogi,
R/o 28/40, 1st Floor,
Old Rajinder Nagar, New Delhi110060 .... Revisionist
VERSUS
1. State of NCT of Delhi,
Through SHO, PS Rajinder Nagar
2. Anukool Rastogi,
S/o Sh. Mahesh Chand Rastogi,
3543, E Windmere Drive,
Phonenix, AZ, USA85044
Digitally signed
by VIJAY
SHANKAR
VIJAY Date:
SHANKAR 2022.10.07
17:41:26
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3. Mahesh Chand Rastogi,
R/o 4041, Shakti Nagar,
University Road, Bareilly,
Uttar Pradesh243006
4. Sarita Rastogi,
W/o Mahesh Chand Rastogi,
R/o 4441, Shakti Nagar,
University Road, Bareilly,
Uttar Pradesh243006 .... Respondents
Date of institution of the revision petition : 05/09/2022
Date on which judgment was reserved : 01/10/2022
Date of judgment : 07/10/2022
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal revision petition under section 397 r/w Section 398 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the revisionist against the order dated 05/07/2022 (hereinafter referred to as 'impugned order') Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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passed by Dr. Neha Kheria, Ld. MM, Mahila Court01(Central), Tis Hazari Courts, Delhi, in Case FIR No.63/2017 PS Rajinder Nagar titled as " State Vs. Anukool Rastogi".
In the present revision petition, the revisionist has prayed to call the record of the Ld. Trial Court and to set aside the impugned order dated 05/07/2022 passed by the Ld. Trial Court.
2. Brief facts necessary for just adjudication of the present revision petition as stated in the present revision petition are that after investigation in FIR No.63/2017 PS Rajinder Nagar final report/chargesheet was filed u/s. 498A/406/34 IPC in which Anukool Rastogi (Husband), Mahesh Chand Rastogi (Fatherinlaw) and Sarita Rastogi (Motherinlaw) were made accused. The revisionist/complainant had filed a W.P. (Crl.) 892/2022 before the Hon'ble High Court of Delhi and the same was disposed of vide order dated 25/04/2022. Thereafter, revisionist/complainant had filed an application u/s. 173(8) Cr.P.C. r/w Section 156(3) Cr.P.C. r/w Section 156(1) Cr.P.C. r/w Section 2(h) Cr.P.C. and also r/w Order dated 25/04/2022 passed in Writ Petition (Crl.) 892/2022 & Crl. MA Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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7580/2022 seeking further investigation in the present matter. The said application dated 05/07/2022 of the revisionist/complainant was heard on 05/07/2022 and the Ld. Trial Court has passed the impugned order. Thereafter, the revisionist applied for the certified copy of the impugned order, which has been received on 11/07/2022 and having studied the same, the revisionist feels aggrieved for directing to provide copy of the application to the defence counsels and also keeping the right of complainant open as to how the accused who have already been summoned cannot be heard on the said application and in this way, the direction to provide the copy of the application dated 05/07/222 to the defence counsels for the accused is a final order.
3. The revisionist has challenged the impugned order on the grounds, as mentioned in the present revision petition.
Grounds of revision The Ld. Trial Court has failed to appreciate and erred in appreciating the scope of the application dated 05/07/2022 filed u/s. 173(8) Cr.P.C. r/w Section 156(3) Cr.P.C. r/w Section 156(1) Cr.P.C. r/w Section 2(h) Cr.P.C. and also r/w Order dated 25/04/2022 Digitally signed by VIJAY SHANKAR VIJAY Date:
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passed in Writ Petition (Crl.) 892/2022 & Crl. MA 7580/2022. Merely because, the summons have been issued and appearance has been entered by the accused persons, the accused persons will not have any right of hearing and filing reply of the said application dated 05/07/2022 and still if given that would be contrary to the scheme of the provisions of Cr.P.C., hence, providing the copy of the application dated 05/07/2022 under the direction of the Ld. Trial Court will be against the provisions of Cr.P.C. and will also prejudice the revisionist/complainant and same is liable to be set aside. There is no specific mandate under the Cr.P.C. for either providing a copy of the aforesaid application dated 05/07/2022 to the accused nor such a direction is inconsonance with the provisions of Cr.P.C. or is in consonance with the law declared by the Hon'ble Supreme Court and Hon'ble High Courts in its several judgments. Even otherwise, while passing the order dated 25/04/2022 by the Hon'ble High Court in W.P. (Crl.) No.892/2022, no opportunity was requested by the defence counsels nor has been given, nor can further be given by the Ld. Trial Court and therefore, the impugned order is liable to be set aside being contrary to law.Digitally signed by VIJAY
VIJAY SHANKAR
SHANKAR Date:
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4. This Court already heard the arguments on the maintainability of the present revision petition advanced by Ld. Counsel for the revisionist. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned order is not an interlocutory order and the present revision petition against the impugned order is maintainable and impugned order is liable to be set aside on the grounds, as mentioned in the present revision petition.
The counsel for the revisionist in support of his contentions on the maintainability of the present revision petition has relied upon the following case laws:
(a) Mohan Lal Magan Lal Thacker Vs. State of Gujarat, { (1968 ) 2 SCR 686}
(b) Smt. Parmeshwari Devi Vs. The State & Anr, {AIR 1977 SC 403}
(c) Indrapuri Primary Cooperative Housing Society Vs. Bhabani Gogoi, { 1991 CRL. L. J. 1765 }
(d) Khagesh Kumar Goel Vs. State of Madhya Pradesh & Ors.
{1998 CRL. L. J. 776}
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VIJAY SHANKAR
SHANKAR Date:
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(e) State Represented By Inspector of Police Vs. Mrs. Renukadevi, {(1999) CRL. L.J. 2955}
(f) State Represented By Inspector of Police & Ors. Vs. N. M. T. Joy Immaculate. {2004 CRL. L.J. 2515}
5. By way of present revision petition, the revisionist has challenged the order dated 05/07/2022 passed by the Ld. Trial Court.
The impugned order is reproduced as under: "05.07.2022 Present: Ld. APP for the State.
Previous IO/SI Jaspreet Pannu in person. Complainant in person along with Ld. Counsel Sh. Rakesh Kumar Singh.
All three accused in person through VC over Cisco Webex Application.
Sh. Ashok Chhaparia, Ld.Counsel for accused no. 1 Sh. Manish Gandhi, Ld. counsel for accused no. 2 and 3.
Ld. Counsel for complainant has filed an application U/s 173(8) r/w Section 156(3) Cr.PC, further r/w Section 156(1) Cr.PC, further r/w Section 2(h) Cr.PC and also further R/w Order dated 25.04.2022 passed in Writ Petition (Crl.) 892/2022 & Crl. MA 7580/2022 seeking further investigation in the present matter.
Ld. Defence Counsels have prayed as they were party before the Hon'ble High Court of Delhi in Writ Petition (Crl) 892/2022 & Crl. MA 7580/2022 and the accused persons have been summoned in the present Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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case, therefore, Ld. Counsel for the complainant may be directed to provide copy of the abovesaid application to them.
Ld. Counsel for complainant has vehemently objected for supplying copy of the abovesaid application on the ground that Ld. Defence Counsels have no locus.
Heard.
This Court is of the opinion that no prejudice will be caused to either of the parties if the copy is supplied to Ld. Defence Counsels as, in any case even if the copy is not supplied, they can go through the content of the application by moving appropriate application for inspection for case file. In view of the same, Ld. counsel for complainant is directed to provide copy of the application to the Ld. Defence Counsels.
Ld. counsel for complainant is at liberty to show authorities in support of his contention that accused, who has already been summoned, cannot be heard on this application.
As IO in the present case has got transferred, therefore, SHO concerned is directed to file reply of the application moved by Ld. Counsel for complainant today.
Be put up on 05.09.2022 for filing reply to the abovementioned application by SHO concerned.
(Dr. Neha Kheria) MM/Mahila Court01(Central) THC/Delhi/05.07.2022"
6. For the sake of ready reference, section 397 Cr.P.C. is reproduced as under: Section 397: Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record Digitally signed by VIJAY SHANKAR VIJAY Date:
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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 subsection and of section 398.
(2) The powers of revision conferred by subsection (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.
7. A plain reading of Section 397 Cr.P.C. makes it manifest that Section 397(1) Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court before the revisional court i.e. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the High Court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section.
Now, it is significant to note that Section 397 (2) Cr.P.C. mandates that the power of revision conferred by subsection (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order in any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under section 397 (2) Cr.P.C. to entertain revision against an interlocutory order.
The term "interlocutory order" as mentioned in section 397 (2) Cr.P.C. denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. An order which is pure and simple interlocutory order, which do not decide anything finally is to be considered as interlocutory order and no revision against that interlocutory order is maintainable under section 397(1) Cr.P.C. in view of the express bar imposed under section 397(2) Cr.P.C.
There are three categories of orders that a Court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a Court can exercise its revision jurisdiction that is in Digitally signed by VIJAY SHANKAR VIJAY Date:
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respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the Court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Court can exercise its revision jurisdiction since it is not an interlocutory order. An intermediate order is one which is interlocutory order in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
8. It was held by Hon'ble Supreme Court of India in case titled as " Amar Nath & Ors. Vs. State of Haryana & Anr.", {(1977) 4 SCC 137} that: "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 wellknown legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, 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 Digitally signed by VIJAY SHANKAR VIJAY Date:
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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".Digitally signed by VIJAY
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It was also held by Hon'ble Supreme Court of India in case titled as " V.C. Shukla Vs. State through C.B.I", (AIR 1980 SC 962] that: (1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained, in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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allowing an appeal against an order framing charges, the Act works serious injustice to the accused.
It was also held by Hon'ble Supreme Court of India in case titled as "Poonam Chand Jain and Anr. Vs. Fazru", {(2004) 13 SCC 269} that: "Wharton's Law Lexicon (14th Edn. p. 529) defines interlocutory order thus:
"An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all."
The principles/guidelines regarding the scope of criminal revision petition have also been laiddown by Hon'ble Supreme Court Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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of India in case titled as "Girish Kumar Suneja Vs. Central Bureau of Investigation", {(2017) 14 SCC 809} and it was held that : "15. While the text of subsection (1) of Section 397 Cr.P.C.
appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by subsection (2) thereof. There is a complete prohibition on a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
16. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
21. The concept of an intermediate order was further elucidated in Madhu Limaye Vs. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in Digitally signed by VIJAY SHANKAR VIJAY Date:
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nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceeding would continue.
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel V. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K.Patel case, SCC p.201, para11) "11. ..... It is now wellnigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397 (2) of the Code, the sole test is not whether such order was passed during the interim stage Digitally signed by VIJAY SHANKAR VIJAY Date:
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(vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharastra, V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any Digitally signed by VIJAY SHANKAR VIJAY Date:
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case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising the extraordinary discretionary power available under Section 397 Cr.P.C."
It was held by Hon'ble High Court of Delhi in case titled as " Neelam Mahajan and Anr. Vs. The State & Ors.", {(2016) 229 DLT (CN) 29} that : "........ In this regard catena of judgments of Hon'ble Supreme Court of India has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final and simultaneously, an interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. Therefore, in the considered opinion of this Court, if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could be attached to the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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9. By way of present revision petition, the revisionist has challenged the impugned order dated 05/07/2022 passed by the Ld. Trial Court thereby Ld. Trial Court had directed the complainant to supply the copy of the application u/s. 173(8) Cr.P.C. r/w Section 156(3) Cr.P.C. r/w Section 156(1) Cr.P.C. r/w Section 2(h) Cr.P.C. and also r/w Order dated 25/04/2022 passed in Writ Petition (Crl.) 892/2022 & Crl. MA 7580/2022 to the defence counsels.
Now this Court has to see as to whether the impugned order is interlocutory, intermediate or final order.
It is well settled law that scope of revisional jurisdiction is very limited and same cannot be exercised in a routine manner. It is also well settled law that question/issue of maintainability of the criminal revision can be examined by the Court at any stage.
Vide impugned order dated 05/07/2022, the Ld. Trial Court had directed the complainant to supply the copy of the application u/s.
173(8) Cr.P.C. r/w Section 156(3) Cr.P.C. r/w Section 156(1) Cr.P.C.
r/w Section 2(h) Cr.P.C. and also r/w Order dated 25/04/2022 passed in Writ Petition (Crl.) 892/2022 & Crl. MA 7580/2022 to the defence Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date: 2022.10.07 17:46:25 +0530 CR No. 51/2022 Page No.19 of 21 Rinky Rastogi Vs. State of NCT of Delhi & Ors.
counsels. Directions to the complainant to supply the copy of the aforesaid application to the defence counsels cannot said to be final or intermediate order as the same do not decide anything finally. It is pertinent to mention here that the aforesaid application dated 05/07/2022 of the complainant/ revisionist is pending adjudication before the Ld. Trial Court.
On perusal of impugned order, it is clear that same is neither final nor intermediate but the same is purely an interlocutory order. The impugned order cannot said to be a final or intermediate order in any manner. If the impugned order is set aside, then there would be no culmination of the proceedings.
There is no dispute regarding the propositions laid down in the case laws relied upon by counsel for the revisionist, however, the same are not applicable to the facts and circumstances of the present case.
10. Applying priori and posteriori reasonings and law laid down in Amar Nath, V.C. Shukla, Poonam Chand Jain, Girish Kumar Suneja and Neelam Mahajan cases (supra), this Court is held that the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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impugned order passed by the Ld. Trial Court is purely an interlocutory order and being interlocutory order, the impugned order is not amenable to the revisional jurisdiction of this Court.
Accordingly, the present revision petition of the revisionist is dismissed, being not maintainable. No order as to costs. Nothing stated herein shall tantamount to be an expression of opinion on the merits of the case.
Trial Court Record be sent back alongwith the copy of this judgment. Revision file be consigned to record room after due compliance.
Digitally signed by VIJAY SHANKAR VIJAY Announced in the open Court SHANKAR Date: 2022.10.07 on 07/10/2022 17:46:41 +0530 (VIJAY SHANKAR) ASJ05 (Central) Tis Hazari Courts, Delhi CR No. 51/2022 Page No.21 of 21