Delhi District Court
Balwant Singh vs Income Tax Office on 6 March, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
Cr. REVISION NO. 136/2020 & 137/2020
BALWANT SINGH
HOUSE No. 3, VILLAGE BARKEDI,
TEHSIL MUKATSAR, FARIDKOT, PUNJAB 162026
THROUGH POWER OF ATTORNEY HOLDER
SHRI JASKARAN SINGH SANDHU
... PETITIONER
VERSUS
1. INCOME TAX OFFICE
THROUGH INCOME TAX OFFICER
SHRI NAVIN KUMAR KURNA
INCOME TAX OFFICER,
WARD - 8(2), NEW DELHI
2. M/s ELITE COUNTY DEVELOPERS Pvt. Ltd.
H - 38, GROUND FLOOR, BALI NAGAR,
NEW DELHI 110015
3. SHRI JAGMEET SINGH SANDHU
DIRECTOR M/s ELITE COUNTY DEVELOPERS Pvt. Ltd.
H - 38, GROUND FLOOR, BALI NAGAR,
NEW DELHI 110015
4. SHRI JASKARAN SINGH SANDHU
MANAGING DIRECTOR,
CR No. 136/2020 & 137/2020 Page 1 of 10 pages
Balwant Singh vs Income Tax Office & Ors.
M/s ELITE COUNTY DEVELOPERS Pvt. Ltd.
H - 38, GROUND FLOOR, BALI NAGAR,
NEW DELHI 110015
5. SHRI BIKRAMJIT SINGH
DIRECTOR, M/s ELITE COUNTY DEVELOPERS Pvt. Ltd.
H - 38, GROUND FLOOR, BALI NAGAR,
NEW DELHI 110015
...RESPONDENTS
Date of filing : 29.02.2020
First date before this court : 02.03.2020
Arguments concluded on : 02.03.2020
Date of Decision : 06.03.2020
APPEARANCE : Shri Amit Khemka, counsel for revisionist
COMMON JUDGMENT
1. The above two criminal revision petitions arise out of two complaint cases pending against the revisionist for offence under Section 276C(2) read with Section 278B of the Income Tax Act for two different assessment years. The orders impugned in these revision petitions are similar qua factual and legal matrix. Therefore, these two revision petitions are taken up together for disposal.
2. On the very first date after institution of these revision petitions, a query was raised to the learned counsel for revisionists CR No. 136/2020 & 137/2020 Page 2 of 10 pages Balwant Singh vs Income Tax Office & Ors.
as regards maintainability of these revision petitions in the light of Section 397(2) CrPC. I heard learned counsel for revisionists.
3. By way of orders impugned in these revision petitions, the trial court of learned Additional Chief Metropolitan Magistrate directed issuance of nonbailable warrants against the revisionist after dismissing his applications for exemption from personal appearance for that day. In the impugned orders, the learned trial court observed that earlier also, personal exemption applications of revisionist were allowed and that the defence counsel was not agreeable to get the notice under Section 251 CrPC framed through him against the revisionist, which reflected malafide intention of the revisionist to delay the trial and that necessitated securing the presence of the revisionist by coercive process.
4. Learned counsel for revisionist contended that the impugned orders are not interlocutory orders because by dismissing the personal exemption applications, the issue before the court came to be concluded. It was also argued by learned counsel for revisionist that the provision under Section 397(1) CrPC confers wide powers on the Court of Sessions in order to rectify the illegality, incorrectness and impropriety in any order passed by the magisterial court. Learned counsel for revisionist argued that since CR No. 136/2020 & 137/2020 Page 3 of 10 pages Balwant Singh vs Income Tax Office & Ors.
the impugned orders to the extent of issuance of NBW violate rights of the revisionist, the revision petitions cannot be held to be hit by the bar under Section 397(2) CrPC.
5. It would be necessary to examine maintainability of these revision petitions, which assail dismissal of applications of the revisionist for grant of personal exemption for that day and direct issuance of nonbailable warrants against him.
6. Section 397(1) CrPC confers on the High Court as well as Court of Sessions very wide powers to examine the legality, correctness and propriety of any order passed by any "inferior criminal court". Subsection (2) of Section 397 CrPC operates as a check on the said vast revisional powers and the purpose of the said check is to curb delays in the decision of the criminal cases, in order to ensure fair and expeditious trial.
7. Basically, a judicial order passed by a criminal court can be either final order or intermediate order or interlocutory order. So far as final order is concerned, there can be no difficulty in the sense that an order of acquittal or conviction is a final order. The issue lies while distinguishing between an interlocutory order and an intermediate order, which distinction is necessary in view of the CR No. 136/2020 & 137/2020 Page 4 of 10 pages Balwant Singh vs Income Tax Office & Ors.
statutory bar created by Section 397(2) CrPC, which curtails the revisional powers of the High Court and the Court of Sessions with respect to interlocutory orders.
8. In the case of K.K. Patel vs State of Gujarat, (2000) 6 SCC 195, the Hon'ble Supreme Court of India held thus :
"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 (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra, V. C. Shukla v. State through CBI 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."
(emphasis supplied)
9. In the case of Girish Kumar Suneja vs CBI, {Cr. Appeal No. 1137 of 2017, arising out of SLP (Crl.) 9503/2016, decided on 13.10.2017 by the Bench of Hon'ble Mr. Justice Madan B. Lokur}, the Hon'ble Supreme Court of India elaborately discussed the law related to right to file revision petition under CR No. 136/2020 & 137/2020 Page 5 of 10 pages Balwant Singh vs Income Tax Office & Ors.
Section 397 CrPC and recapitulated the previous judicial precedents, including those cited above, and held thus :
"16. While the text of subsection (1) of Section 397 of the 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 in 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?
17. 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.
......
......
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 :
"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 CR No. 136/2020 & 137/2020 Page 6 of 10 pages Balwant Singh vs Income Tax Office & Ors.
interim stage (vide Amar Nath v. State of Haryana, Madhy Limaye v. State of Maharashtra, V. C. Shukla v. State through CBI 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."(Emphasis supplied by us). ....
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 which if set aside would result in culmination of the proceedings." (emphasis supplied)
10. In the case of Virkaran Awasty vs State of NCT of Delhi, CrlMC 2229/17, decided on 01.11.2017 by Hon'ble Ms. Justice Sangita Dhingra Sehgal of the Delhi High Court, it was held after detailed discussion that an order directing issuance of non CR No. 136/2020 & 137/2020 Page 7 of 10 pages Balwant Singh vs Income Tax Office & Ors.
bailable warrants is an interlocutory order and therefore, criminal revision petition against that order is not maintainable in view of bar under Section 397(2) CrPC.
11. In the backdrop of above cited law, in order to determine as to whether the impugned orders in the present cases are interlocutory orders (and thereby hit by Section 397(2) CrPC) or the same are intermediate orders (and thereby amenable to the revisional jurisdiction of this court), the test is as to whether setting aside the impugned orders would lead to termination of proceedings and if so, the impugned orders cannot be held to be interlocutory orders.
12. As mentioned above, by way of impugned orders, applications of the revisionist for personal exemption for that day were dismissed and nonbailable warrants against him were ordered. If the orders impugned in the present cases are set aside, the result would not be termination of proceedings. That being so, in my considered view the impugned orders are not intermediate orders but interlocutory orders, so the same are not amenable to revisional jurisdiction of this court.
CR No. 136/2020 & 137/2020 Page 8 of 10 pages Balwant Singh vs Income Tax Office & Ors.
13. Merely because by way of impugned orders the issue of personal exemption for that day sought by the revisionist came to be concluded, the impugned orders cannot be held to be final orders or intermediate orders. The Hon'ble Delhi High Court in the case of Neelam Mahajan vs The State, Cr. MC 2242/2014 decided on 08.04.2016 held that an interlocutory order would not cease to be interlocutory order merely because it disposes of an aspect in the course of proceedings even though adversely affecting a party for the time being and that an order passed under Section 311 CrPC is interlocutory in nature, so not amenable to revisional jurisdiction.
14. I am unable to agree with argument of learned counsel that issuance of nonbailable warrants violates rights of the revisionist. For, as rightly observed in the impugned order also, issuance of nonbailable warrants is only a coercive process in order to ensure presence of revisionist accused before the learned trial court, so that the trial proceeds in his presence.
15. In view of above discussion, I have no hesitation to hold that the impugned orders are interlocutory orders and not amenable to revisional jurisdiction of this court in view of Section 397(2) CrPC.
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16. Therefore, the revision petitions are dismissed as not maintainable. A copy of this judgment be sent to learned trial court and revision files be consigned to records.
Announced in the open court on
this day of 06th March, 2020 (GIRISH KATHPALIA)
District & Sessions Judge (HQs)
Digitally Tis Hazari Courts
signed by Delhi 06.03.2020 (a)
GIRISH
GIRISH KATHPALIA
KATHPALIA Date:
2020.03.07
15:28:22
+0530
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Balwant Singh vs Income Tax Office & Ors.