Delhi District Court
Mohd. Rashid vs The State/Nct Of Delhi on 9 December, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQ)
TIS HAZARI COURTS, DELHI.
Cr. Revision No. 65/2020
MOHD. RASHID
S/o SHRI TUFAIL AHMED
R/o VILLAGE - KURLA
POST - BHATWANA, PS: KHURJA
DISTT. BULANDSHAR, UP.
..... REVISIONIST
VERSUS
THE STATE/NCT OF DELHI
..... RESPONDENT
Date of filing : 25.01.2020
First date before this court : 25.01.2020
Arguments concluded on : 09.12.2020
Date of Decision : 09.12.2020
APPEARANCE : None for revisionist
Learned Additional Public Prosecutor for State
J U D G M E N T (ORAL)
1. The revisionist, facing trial arising out of case FIR No. 282/16 of PS DBG Road in magisterial court has assailed order dated 07.05.2019, whereby cost for adjournment was imposed on him.
2. On the very first date one proxy appeared on behalf of revisionist and took adjournment to address on maintainability of this criminal revision petition challenging imposition of cost. Thereafter, on two dates (prior to commencement of Covid-19 lockdown) and six dates Cr. Revision No. 65/2020 Page 1 of 9 pages Mohd. Rashid vs State (subsequent to lockdown, out of which four dates were subsequent to lifting of lockdown), none appeared on behalf of revisionist. On last date, 17.10.2020 subject to the revisionist depositing cost of Rs.3,000/- last and final opportunity was granted to revisionist to address final arguments today or file written arguments. But today, despite three calls none has appeared on behalf of revisionist and even written arguments have not been filed. Therefore, I have heard learned Additional Public Prosecutor for State and examined the record.
3. Briefly stated, on 07.05.2019 when the trial was listed in the magisterial court, the revisionist accused did not appear and his counsel sought exemption from personal appearance of the accused. The learned magistrate observed that last prosecution witness ASI Rakesh Chand was present but counsel for the revisionist accused expressed inability to cross examine the witness in the absence of the revisionist accused and also for the reason that main defence counsel was busy in some other court. Expressing his anguish that in case the revisionist accused was unable to appear, he should have ensured that witness did not go back unexamined. Even the exemption application of the revisionist accused was not accompanied with any medical record. Therefore, the learned Magistrate allowed the adjournment request after imposing cost of Rs. 5000/- on the revisionist accused, to be deposited with DLSA. On the next date 11.10.2019 before the learned trial magistrate, the revisionist filed an application for waiver of cost which was dismissed by way of detailed order. But it is only order dated 07.05.2019, which was challenged by the revisionist by way of this petition.
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Mohd. Rashid vs State
4. At the outset, it is noticed that the present revision petition is barred by limitation and there is no application seeking condonation of delay.
5. Besides, this revision petition is also hit by the provision under Section 397(2) CrPC. For the sake of ready reference, the provisions under Section 397 CrPC are quoted as follows :
"397. Calling for records to exercise powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record 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 sub-section and of section 398.
(2) The powers of revision conferred by sub-section (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.
6. Noticeably, 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 Cr. Revision No. 65/2020 Page 3 of 9 pages Mohd. Rashid vs State court". Sub-section (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 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. The concept of an intermediate order was elucidated in the case of Madhu Limaye vs State of Maharashtra, (2000) 6 SCC 195 by the Hon'ble Supreme Court of India while distinguishing a final order from an interlocutory order. The Hon'ble Supreme Court of India laid down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. An intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.
9. In the case of K.K. Patel vs State of Gujarat, (2000) 6 SCC 195, the Hon'ble Supreme Court of India held thus :
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Mohd. Rashid vs State
"It is now well-nigh 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)
10. 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 Section 397 CrPC and recapitulated the previous judicial precedents, including those cited above, and held thus :
"16. While the text of sub-section (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 sub-section (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 Cr. Revision No. 65/2020 Page 5 of 9 pages Mohd. Rashid vs State jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
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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 well-nigh 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, 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)
11. In the backdrop of above cited law, in order to determine as to Cr. Revision No. 65/2020 Page 6 of 9 pages Mohd. Rashid vs State whether the order dated 07.05.2019, impugned in the present case is interlocutory order (and thereby hit by Section 397(2) CrPC) or the same is intermediate order (and thereby amenable to the revisional jurisdiction of this court), the test is as to whether setting aside the impugned order would lead to termination of proceedings and if so, the impugned order cannot be held to be interlocutory order.
12. If the order dated 07.05.2019, impugned in the present case (whereby the revisionist/accused was burdened with costs) is set aside, the result would be continuation of trial without payment of costs, and not termination of proceedings. That being so, in my considered view the impugned order dated 07.05.2019 is not intermediate order but interlocutory order, so the same is not amenable to revisional jurisdiction of this court. The test cannot be to see whether the issue of costs payment would come to termination. For, going by that test, every order leads to termination of proceedings pertaining to the issue raised in that order. Every order passed during the criminal trial cannot be intermediate order.
13. 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.
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14. It is to deal with the situations like the present case that bar of Section 397(2) CrPC was enacted so as to prevent delays in disposal of criminal trial by restricting the revisional jurisdiction to ensure that the accused or even the complainant does not take very order to superior court and succeed in derailing the trial. In the present case also, the revisionist accused tried to delay the trial by challenging the cost imposition order so belatedly, that too without seeking condonation of delay. Even after filing the present revision petition way back in the month of January 2020, neither the revisionist nor his counsel appeared. Initially on two dates (prior to Covid lockdown), the matter was adjourned after waiting for the counsel for revisionist till post lunch session on both dates, so as to ensure a fair hearing to the revisionist, and thereafter matter was adjourned (on account of Covid lockdown) followed by directions of the Hon'ble High Court not to pass adverse orders without hearing both sides, which directions were recalled by the Hon'ble High Court after last date. All that while, this court was being regularly held through videoconferencing, but none appeared on behalf of revisionist. Even written arguments were not filed on behalf of revisionist despite directions. It being a criminal revision, the petition could not even be dismissed in default. The present revision petition is not just completely devoid of merits but appears to have filed with oblique motive to only delay the main trial proceedings.
15. In view of the above discussion, it is held that the impugned order dated 07.05.2019 of the trial magistrate being interlocutory order is not amenable to revisional jurisdiction of this court and the revision petition is time barred and frivolous. Consequently, the revision petition is Cr. Revision No. 65/2020 Page 8 of 9 pages Mohd. Rashid vs State dismissed with cost of Rs.10,000/- to be deposited by the revisionist online with www.bharatkeveer.gov.in, the website of Ministry of Home Affairs, Government of India, within 10 days.
17. A copy of this judgment be sent to the learned trial court to ensure compliance as regards cost. File be consigned to records.
Announced through videoconferencing due to Covid-19 lockdown on this 09th day of December, 2020 Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2020.12.09 14:52:36 +05'30' (GIRISH KATHPALIA) Principal District & Sessions Judge (HQ) Tis Hazari Courts Delhi 09.12.2020 Cr. Revision No. 65/2020 Page 9 of 9 pages Mohd. Rashid vs State