Delhi District Court
Ms Surge Industries Ors vs Kamal Gupta , Tripti Gupta on 4 May, 2026
IN THE COURT OF MS. SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-06,
NEW DELHI DISTRICT: PATIALA HOUSE COURT NEW
Cr. Rev. No. 615/2025
Surge Industries Limited & Ors. Vs. Kamal Gupta
& Anr.
CNR NO. DLWT01-009186/2025
In the matter of :
1. Surge Industries
Regd. Partnership Firm Plot No. 13,
Sector-18, Phase-3, Barhi Industrial Estate,
District Sonipat - 131028.
2. Mr. Deep Narayan Goyal
S/o Late Sh. Madan Lal Goyal
Partner of Surge Industries
3. Mrs. Meena Goyal
W/o Sh. Deep Narayan Goyal
Partner of Surge Industries
Both resident of Flat 802, Tower-Q2,
Ushay Tower, Kundli,
District Sonipat - 131028.
..... Revisionist(s)
Versus
1. Kamal Gupta,
S/o Sh. P. D. Gupta,
2. Tripti Gupta
W/o Sh. Kamal Gupta
Both R/o B-8/22, G.F., Vasant Vihar,
New Delhi-110057.
..... Respondent(s)
Criminal Revision No. 615/2025
M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 1 of 11
Date of Institution : 29.10.2025
Date of reserving order : 18.04.2026
Date of pronouncement : 04.05.2026
ORDER
1. The present revision petition has been preferred by the revisionist under Section 397/399 Cr.PC (438/440 of BNSS) against the order dated 18.09.2025 (herein after referred to as the 'Impugned Order') passed by Ld. JMFC (NI Act), Digital Court-02, Patiala House Court, New Delhi (herein after referred to as the 'Ld. Trial Court') in Ct. Case No. 33823/2024 titled as Kamal Gupta & Anr. Vs. Surge Industries Limited & Ors., whereby application of the revisionist/accused persons under Section 348 of BNSS seeking permission to recall CW-1, was dismissed.
Arguments addressed on behalf of revisionist(s)/accused persons
2. Assailing the impugned order, Ld. Counsel for the revisionist(s) submitted that the impugned order is bad in law and contrary to the settled judicial principles; that Ld. Trial Court did not exercise the discretion judiciously without examining whether the evidence sought was essential for the just decision of the case, which meant to ensure a fair trial and discovery of truth while passing the impugned order; that Ld. Trial Court erred in treating the application as an attempt to fill lacunae; that Ld. Trial Court acted mechanically and Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 2 of 11 failed to exercise its discretion judiciously which mandates the Court to recall or re-examine a witness whenever the Court considers the evidence is essential to the just decision of the case and refusal to exercise this power amounts to procedural impropriety; that procedural laws are meant to advance justice and not to obstruct it and placed reliance upon judgment passed by Hon'ble Supreme Court of India in case titled as Kailash Vs. Nankhu & Ors. : (2005) 4 SCC 480; that Ld. Trial Court failed to appreciate that the defence had changed counsel only on 27.06.2025 and the newly engaged counsel discovered multiple factual inconsistencies and omissions after pursuing certified copies; that great prejudice shall be caused to the revisionist(s)/accused persons, if the present revision petition is not allowed.
Arguments addressed on behalf of respondent(s)/Complainant
3. Per contra, Ld. for respondents supporting the Impugned Order argued that there is no infirmity and illegality done by the Ld. Trial Court and has rightly dismissed the application of the revisionist/IO. He further submitted that the present revision petition is nothing but an attempt to fill up the lacuna by the revisionists. Even otherwise, it has been vehemently argued that the present revision petition is not maintainable as the order assailed by the revisionist(s) is an interlocutory order.
Relevant portion of the Impugned Order Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 3 of 11
6. The Court heard the arguments as advanced by Ld. Counsel for both the parties and have gone through the material available on record.
7. Before proceeding further, the Court finds it appropriate to discuss the relevant portion of the impugned order, whereby the Ld. Trial Court dismissed the application filed by the revisionist, which reads as under:
" The Ld. Counsel for the accused/applicant has moved the application to recall CW-1 for further cross examination as the previous counsel had failed to cross examine the witness properly. At the outset it should be noted that the Hon'ble SC in State NCT of Delhi Vs. Shiv Kumar Yadav, (2016) 2 SCC 402 has held that a witness cannot be recalled u/s 311 CrPC merely because of incompetence or change of counsel. The Ld. Counsel for the accused persons has argued that the previous counsel has not cross examined CW1 on the special power of attorney, whatsapp chats, GST documents and the ledger. However perusal of the record shows otherwise, the erstwhile counsel has cross examined CW1 at length regarding all the documents. CW1 was cross examined at length on multiple occasions. The discretion granted under Section 348 of BNSS is discretionary and it cannot be used merely to fill lacunae in the case of a party. The accused persons have failed to show any merit in the present application, accordingly the application stands dismissed."
Relevant law Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 4 of 11
8. This Court is guided by the judgment rendered by Hon'ble Supreme Court of India in case titled as Neelam Mahajan & Anr. Vs. The Sate & Ors. reported in 2016 SCC OnLine Del 2281, has observed that :
"15. The admitted facts of the case are that the respondents' first application under Section 311 of Cr.P.C. had been rejected by the learned Metropolitan Magistrate vide order dated 09.07.2012 and the second application under Section 311 of Cr.P.C. was allowed by the learned Metropolitan Magistrate vide order dated 26.08.2013. It is also well settled law from the catena of judgments of Hon'ble Supreme Court that no revision shall lie against the interlocutory order. xxxxxxxx
16. The main question arises for consideration is whether the order passed under Section 311 of Cr.P.C. is an interlocutory order or not? In this regard catena of judgments of Hon'ble Supreme Court 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 Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 5 of 11 be tried in the ordinary way, no finality could be attached to the order.
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20. After perusing the impugned order as well as the material placed before this court and in the light of the facts and circumstances of the present case this Court is also of the opinion that every interlocutory order merely because it disposes of an aspect, nay a vital aspect in the course of a pending proceeding even adversely affecting a party for the time being would not be something other than interlocutory.
21. This Court also perused the order passed by the revisional Court holding that the order passed under Section 311 Cr.P.C. is interlocutory order and therefore the same is not revisable and this court finds no reason to disagree with thereto."
9. Further, Hon'ble High Court of Delhi in case titled as Situ Ramnath Shastri Vs. IFCI Factors Ltd. reported in 2022 SCC OnLine Del 2660, wherein it has been observed that :
"10 In my view, the contention of Ld. counsel for the respondent that no revision petition is maintainable in light of the judgment in the matter of Sethuraman (supra) has force in it. The relevant portion of the abovementioned judgment is reproduced hereunder:
'5.....Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application u/s 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 6 of 11 u/s 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e. one on the application u/s 91 Cr.P.C. for production of documents and other on the application u/s 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, u/s 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed."
xxxxxxx
13. It is trite law that an order passed under Section 311 Cr.P.C. is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr.P.C. Consequently, the revision petitions preferred before Ld. ASJ were not maintainable and thus, the present petitions filed against the final outcome of the said revision petitions are again not maintainable."
Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 7 of 11 Analysis and Observation
10. Law is well settled by catena of judgments rendered by Hon'ble Superior Courts that order passed on the application under Section 311 Cr.PC (Now 348 BNSS) is an interlocutory order and no revision lies against the said order. Hence, the present revision petition is not maintainable against the impugned order.
11. Even otherwise, the discretionary power vested under Section 311 cannot be used in a routine manner on the plea of change of a counsel as he/she appointed/assisted by the party of his/her choice. Perusal of impugned order as well as the material placed on record and the facts and circumstances of the present case, this Court finds that no substantial reason has been shown to recall CW-1 and the change of counsel cannot be a sufficient reason to invoke invoke 311 Cr.P.C. The complainant was examined and cross examined by the counsel of the choice of accused persons/revisionist herein and the same was conducted in detail.
12. Recently, Hon'ble High Court of Delhi in Crl. M. C. No. 4782/2024 titled as Vimal Ghai Vs. M. P. Sharma (Dated 05.01.2026), has held that :
15. Perusal of orders passed by the trial Court and the revisionist Court clearly reflect that the complainant/respondent evidence was closed way back and application under Section 311 Cr.P.C was filed much later. The only justification that the petitioner has is that the previous counsel did not put the material questions during cross- examination of complainant/respondent.
Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 8 of 11
16. The newly engaged counsel steps into the shoes of previous counsel and cannot agitate that more questions were required to be put to the witnesses. Merely because the new counsel has been engaged, same would not confer any right to the petitioner to seek recall of complainant/respondent for cross-examination, failing which, there would be chaos and every new counsel engaged by the concerned party would file an application for recall of witnesses on that ground which would result in unnecessary delay in disposal of the case. This Court in CRL.M.C 6451/2025, titled, "Govind Mandal vs. State of NCT of Delhi" held that power under Section 311 Cr.P.C cannot be exercised merely on account of the reason of change in counsel. The relevant paragraph of said order reads as under:-
'15 Moreover, the power under Section 311 of the CrPC cannot be exercised at such a belated stage merely on account of change in counsel. Different opinion of a subsequent counsel on how the case is to prosecuted cannot be a legal ground for recalling a witness. If such arguments are allowed, the trial would be a never-ending endeavour since after every few months, a new lawyer with a different strategy would be engaged, who would like to cross examine the witnesses again.'
17. There is no gainsaying that fair trial is a part of Article 21 of the Constitution of India. The Hon'ble Supreme Court in the case of State (NCT of Delhi Vs. Shiv Kumar Yadav (2016) 2 SCC 402, held that fairness of trial has to Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 9 of 11 be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The Hon'ble Court held that while advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It is normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a re-trial must follow on every change of counsel, can have serious consequences on conduct of trials and criminal justice system. If the witnesses are to be re-called again and again and are required to repeatedly appear in Court to face cross-examination, it can result in undue hardship, which is not permissible. Mere observation that recall was necessary 'for ensuring fair trial' is not enough unless there are tangible reasons to show how the fair trial suffered without recall.
Therefore, this Court finds that there is no illegality or irregularity while passing the impugned order.
Conclusion
13. In view of aforesaid discussion, the present revision petition is hereby dismissed being not maintainable since it has been filed against an interlocutory order. Accordingly, present revision petition is disposed of.
Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 10 of 11
14. Copy of this order be sent back to the learned Trial Court.
15. The file of this revision petition be consigned to record Digitally signed room after due compliance. by SHEFALI SHEFALI BARNALA BARNALA TANDON TANDON Date:
2026.05.04 Pronounced in the open 17:01:07 +0530 Court on 04.05.2026 (Shefali Barnala Tandon) Additional Sessions Judge -06, New Delhi District, Patiala House Courts, New Delhi Criminal Revision No. 615/2025 M/s Surge Industries & Ors. Vs. Kamal Gupta & Anr. Page 11 of 11