Delhi District Court
Ved Prakash vs State (Gnct Of Delhi) on 28 January, 2025
IN THE COURT OF MS. SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-05,
WEST DISTRICT: TIS HAZARI COURTS: DELHI
Criminal Revision No: 393/2024
Ved Prakash (IO/ACP) Vs. State (NCT of Delhi) & Ors.
CNR NO. DLWT01-006961/2024
In the matter of :
Ved Prakash (IO/ACP)
S/o Sh. Asu Lal,
R/o B2/89, Paschim Vihar,
Delhi-110053.
..... Revisionist
Versus
1. State (NCT of Delhi)
2. Sarabjit Singh
S/o Late Sh. Darshan Singh
R/o WZ-67A, Mukherjee Park,
Tilak Nagar, Delhi-110018.
3. Khubi Singh
S/o Late Sh. Kalu Ram
R/o H. No. 190, Police Line Area,
Hisar (Haryana) 125001. ..... Respondents
Date of Institution : 17.08.2024
Date of reserving order : 28.01.2025
Date of pronouncement : 28.01.2025
Criminal Revision No. 393/2024
Ved Prakash Vs. State (GNCT of Delhi) Page 1 of 16
ORDER
1. The present revision petition has been preferred by the revisionist under Section 438 read with Section 440 of BNSS, 2023 against the order dated 18.07.2024 (herein after referred to as the 'Impugned Order') passed by Ld. Chief Judicial Magistrate, West District, Tis Hazari Courts, Delhi (herein after referred to as the 'Ld. Trial Court') in case Crl. Case No. 68896/2016 titled as State Vs. Sahab Singh whereby application of the revisionist/IO seeking his examination for recording of his evidence was dismissed.
Arguments addressed on behalf of revisionist
2. Assailing the impugned order, Ld. Counsel for the revisionists submitted that the impugned order is illegal, unwarranted and passed against the natural justice; that Ld. Trial Court failed to appreciate that the revisionist is IO/Police Officer and his non appearance before the Court on 18.07.2022 was neither intentional nor deliberate but due to his presence required before the Hon'ble High Court of Delhi; that Ld. Trial Court failed to appreciate the contents of the exemption application sent by the revisionist/IO and closed prosecution evidence on behalf of State after declining the request of Ld. Prosecutor.
3. To substantiate her arguments, Ld. Counsel for the revisionist has placed reliance upon following judgments :
a. Hon'ble High Court of Tripura in Crl. Rev. P. No. 21/2024 titled Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 2 of 16 as Sri Arjun Debbarama Vs. The State of Tripura, has observed that :
"10. I have heard the rival submission of both the parties and gone through the relevant provision of Section 397 of Cr.P.C. and also the principles of law laid down by the Hon'ble Apex Court in the aforenoted cases. Also perused the order dated 07.03.2024 and after perusing the same, it appears to me that by the said petition, the Learned Trial Court below dismissed the prayer of the accused person to adduce defence witness as the accused petitioner at time of filling of list of witness on 24.01.2024 did not submit the names of those persons to the Court. So, Learned Counsel closed the scope for adducing further evidence and fixed the case for hearing of argument. I have gone through the provision of Section 311 of Cr.P.C. After elaborate hearing of argument of both the sides and also keeping it in mind the principles of the aforesaid citations laid down by the Hon'ble Apex Court, in my considered view, the order dated 07.03.2024 is not an interlocutory order rather it is a final order by which the further right of the accused to adduce further evidence has been finally closed by the Learned Trial Court below for which the revision petitioner is entitled to prefer revision under Section 397 read with Section 401 of Cr.P.C. Although it was the duty of the accused petitioner to submit the detailed list of witnesses at the time of submission before the Learned Trial Court below however, for proper adjudication of this case in my considered view, one opportunity should be given to the petitioner to take steps for issuing summons upon those witness as mentioned in his petition."
Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 3 of 16 b. Hon'ble High Court of Sikkim in Crl. Rev. No. 3/2004 titled as State of Sikkim Vs. Sri Thukchuk Lachungpa and Anr., has observed that :
"17. xxxxxxx I am also of the view that the case laws cited by Shri D. N. Choudhury, learned senior counsel, i.e. the decision of the Jammu and Kashmir High Court rendered in S. K. Mahajan Vs. Municipality, Jammu (supra) does not help the case of the accused-respondents as the right of the prosecution to examine a vital witness mentioned above has been deprived of by and under the impugned order. Moreover, this Court in Prem Subha Vs. State of Sikkim (Supra) laid down relevant laws as highlighted above. Hence, the impugned order, i.e. the rejection of the petition under Section 311, Cr. P.C. is not an interlocutory order and accordingly, the present revision petition is maintainable. I am also of the view that no prejudice shall be caused to the accused persons if the said witness Shri Avichal is examined as one of the prosecution witnesses inasmuch as accused-persons shall get the opportunity to cross-examine the said witness for their defence."
c. Hon'ble Supreme Court of India in case titled as U. T. Dadra & Haveli & Anr. Vs. Fatehsinh Mohansinh Chauhan reported in 2006 AIR SCW 4840, has observed that :
11. xxxxxx It was emphasized that power is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 4 of 16 the truth by all lawful means. Further, that the power must be used judicially and not capriciously or arbitrarily........"
d. Hon'ble Supreme Court of India in case titled P. Sanjeeva Rao Vs. State of A.P. reported in AIR 2012 SUPREME COURT 2242, has observed that :
"14. The extent and the scope of the power of the Court to recall witnesses was examined by this Court in Mohan Shamji Soni Vs. Union of India & Anr.;1991 Supp (1) 271, where this Court observed:
"The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair- play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case." (emphasis supplied)
15. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the following words:
Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 5 of 16 "What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice."
16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.
Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 6 of 16 e. Hon'ble Supreme Court of India in case titled as Natasha Singh Vs. CBI (State) reported in 2013 (5) SCC 741, has observed that :
"15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same."
Arguments addressed on behalf of respondents No. 2 & 3
4. Per contra, Ld. for respondent No. 2 & 3 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 sufficient opportunities were granted to the revisionist/IO, however, he failed to appear before the Ld. Trial Court concern for deposition. It has been vehemently argued by Ld. Counsel for the respondent No. 2 that the present revision petition is not maintainable as the order assailed by the revisionist is an interlocutory order.
Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 7 of 16
5. To substantiate his arguments, Ld. Counsel for the respondent No. 2 has placed reliance upon following judgments :
a. Hon'ble Supreme Court of India in case titled as Sethuraman Vs. Rajamanickam reported in (2009) 5 Supreme Court Cases 153, has "5. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 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 under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable." b. 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 Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 8 of 16 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 be tried in the ordinary way, no finality could be attached to the order. xxxxxxxx
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 Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 9 of 16 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."
6. On the very same issue i.e. interlocutory order, Ld. Counsel for respondent No. 3 has placed reliance upon following judgments rendered by Hon'ble Supreme Court of India.
a. Case titled as Madhu Limaye Vs. State of Maharashtra reported in (1977) 4 SCC 551; b. Case titled as Sethuraman (Supra); and c. 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 judgement 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 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 Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 10 of 16 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."
Relevant portion of the Impugned Order
7. The Court heard the arguments as advanced by Ld. Counsel for both the parties and have gone through the material available on record including the Trial Court Record.
Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 11 of 16
8. 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:
" A perusal of the file reveals that vide order dated 18.07.2022, holding that the present case is one of the oldest cases of the present court and despite various opportunities the prosecution could not conclude the Prosecution Evidence, thus, PE was closed and the matter was fixed for recording statement of accused on 30.08.2022.
It is pertinent to mention herein that since 18.07.2022 no application has been moved by the prosecution or the IO/ACP Ved Prakash to get his examination conducted. It appears that the present application has been filed just to delay the proceedings of the present case which is at the stage of final arguments. I see no merits in the present application and the same is dismissed."
Relevant law
9. This Court is guided by the judgment rendered by the Hon'ble High Court of Delhi in Crl. Revision No. 419/2023 titled as Mohd Hasan @ Nanhe vs State, has observed as under :
8. In my considered view, the contention of Ld. APP for the State that no revision petition is maintainable in light of the judgment in the matter of Sethuraman (Supra) has force in it. The relevant Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 12 of 16 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 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 Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 13 of 16 accordingly set aside. The appeals are allowed."
9. Reliance can also be placed upon B.B. Lal Aggarwal vs. The State Govt of Delhi & Anr. (Crl. M.C. 953/2022, Judgment dated 04.04.2022) decided by the Coordinate Bench of this court, wherein, it was observed that no revision lies against an interlocutory order.
10. The intent of Section 311 Cr.P.C. is to empower the court to make a fair evaluation at every instance. The court has been entrusted with this authority so that justice be administered without being constrained by the specifics of the legislation. It makes no difference whether a witness has been cross-examined by the party seeking to recall them or whether all of the evidence has been closed or not. The question for the court is whether calling back such a witness and presenting evidence is necessary for a fair resolution of the case. This alone demonstrates how the preceding ruling on the application under Section 311 Cr.P.C. cannot be regarded as final. The court may permit a witness to be summoned if, at a later stage, it determines that recalling the witness was required for a just resolution of the matter.
11. It is trite law that an order passed under Section 311 Cr.P.C. is purely an interlocutory order and a Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 14 of 16 revision against an interlocutory order is clearly barred under Section 397(2) Cr.P.C. Therefore, the present revision petition filed against order dated 31.03.2023 passed by the Ld. ASJ dismissing the application under Section 311 Cr.P.C, is thus, not maintainable."
10. Even the case law filed on behalf of respondents are on the same point of law.
Analysis and Observation
11. Law is well settled as held in case Sethuraman (Supra) that order passed under Section 311 Cr.PC is an interlocutory order and no revision lies against the said order. Hence, the present revision petition is not maintainable against the impugned order.
12. Even otherwise, perusal of the record shows that ample opportunities were available with the revisionist/IO to approach the Court concerned, however, he failed to avail such opportunity and filed the application for his examination after two years i.e. on 18.07.2024, of closing of prosecution evidence on 18.07.2022. Therefore, there is no illegality or irregularity in 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. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 15 of 16
14. The Trial Court Record along with the copy of this order be sent back to the learned Trial Court.
15. The file of this revision petition be consigned to record room after due compliance.
Pronounced in the open Court on 28.01.2025 (Shefali Barnala Tandon) Additional Sessions Judge -05, (West) Tis Hazari Courts Delhi It is certified that this Order contains 16 pages and each page bears my signatures.
(Shefali Barnala Tandon) Additional Sessions Judge -05, (West) Tis Hazari Courts Delhi Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 16 of 16