Delhi District Court
Shri Zaffaryab Hussain vs Shri Jazar Ali on 10 February, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE
HEAD QUARTER, TIS HAZARI COURTS, DELHI.
Cr. REVISION NO. 728/2019
SHRI ZAFFARYAB HUSSAIN
S/o SHRI ASHRAF HUSSAIN
1738, BAZAR LAL KUAN,
DELHI 110006
... REVISIONIST
VERSUS
1. SHRI JAZAR ALI
S/o SHRI ZAFFARYAB HUSSAIN
1098, GALI GOPALJI,
FARASH KHANA, DELHI 110006
2. SHRI ANWAR PARVEZ,
S/o LATE SHIR MOHD. NASEEM
R/o 138, GALI MASJID TEHWAR KHAN
NAYA BANS, DELHI.
...RESPONDENTS
Date of filing : 25.11.2019
First date before this court : 25.11.2019
Date of Decision : 10.02.2021
APPEARANCE : None
J U D G M E N T (O R A L)
1. The revisionist, being the complainant of a complaint case for offences under Section 379/411/109/34 IPC has assailed order dated 20.08.2019 of the learned trial magistrate, whereby application of the revisionist for permission to lead secondary evidence was dismissed. On the very first date, the provisions under CR No. 728/2019 Zaffaryab Hussain vs Jarar Ali & Ar. Page 1 of 8 pages Section 397(2) CrPC were brought to the notice of the learned counsel for revisionist and he sought adjournment to examine maintainability of this petition. Thereafter, counsel for revisionist stopped appearing. Even prior to the commencement of Covid lockdown and thereafter during lockdown the matter was repeatedly adjourned but learned counsel for revisionist opted not to appear address arguments. However, by way of email dated 09.02.2021, counsel for revisionist opted to file written submissions on the maintainability of this revision petition. I have examined the same.
2. As mentioned above, by way of impugned order, the learned magistrate dismissed the application of the revisionist complainant for permission to lead secondary evidence, holding that the revisionist complainant was raising a stand contrary to the stand taken by him in the complaint case; that the secondary evidence sought to be led would not be helpful to the court in deciding the controversy involved; and that there is long unexplained delay in moving the application.
3. In his written submissions regarding maintainability of this revision petition in the light of Section 397(2) CrPC, counsel for revisionist contended that since the impugned order adjudicated rights on a particular aspect of the trial, the impugned order is not an interlocutory order. It is also contended in the written submissions that since the impugned order substantially decided rights of the parties, it cannot be said to be interlocutory order. In support of his CR No. 728/2019 Zaffaryab Hussain vs Jarar Ali & Ar. Page 2 of 8 pages contentions, learned counsel has placed reliance on the judgment of the Hon'ble Delhi High Court in the case of Nishu Wadhwa vs Siddharth Wadhwa, 236 (2017) DLT 612.
4. At this stage, it would be apposite to traverse through the legal position and relevant judicial pronouncements pertaining to Section 397(2) CrPC.
5. 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.
6. 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 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 CR No. 728/2019 Zaffaryab Hussain vs Jarar Ali & Ar. Page 3 of 8 pages 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)
7. 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 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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CR No. 728/2019 Zaffaryab Hussain vs Jarar Ali & Ar. Page 4 of 8 pages
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)
8. In the backdrop of above cited law, in order to determine as to whether the order dated 20.08.2019 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 CR No. 728/2019 Zaffaryab Hussain vs Jarar Ali & Ar. Page 5 of 8 pages 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.
9. If the order dated 20.08.2019, impugned in the present case (whereby application of the revisionist for permission to lead secondary evidence was dismissed) is set aside, the result would be recording of further evidence, and not termination of proceedings. That being so, in my considered view the impugned order dated 20.08.2019 is not intermediate order but interlocutory order, so the same is not amenable to revisional jurisdiction of this court.
10. The test cannot be to see whether the issue of permission to lead secondary evidence 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.
11. The Hon'ble Delhi High Court also 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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12. In fact, 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 disposals of trials.
13. Coming to the judicial precedent of Nishu Wadhwa (supra) relied upon by counsel for revisionist, the issue examined by the Hon'ble Delhi High Court was as to whether an order passed by a magistrate under Section 156(3) CrPC is an interlocutory order and hence not amenable to revisional jurisdiction of the Court of Sessions. To that extent, there cannot be any dispute going by the test laid down by the Hon'ble Supreme Court in the above cited judicial precedents. But as mentioned above, the present situation deals with dismissal of an application for permission to lead secondary evidence. It is settled legal position that there is no requirement in law to file an application for permission to lead secondary evidence, as what the party concerned is required to do is to adduce evidence laying foundations for the necessity to lead secondary evidence and then lead the evidence further. In that regard, reference can be drawn from the judgment of Hon'ble Delhi High Court in the case of Prem Chandra Jain vs Shri Sri Ram, (2009) ILR 7 Delhi 605.
14. Therefore, I am of the considered view that the order impugned by the revisionist is an interlocutory order, so not amenable to revisional jurisdiction of this court due to bar under Sec.397(2) CrPC.
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15. The revision petition is held not maintainable and the same is accordingly dismissed. A copy of this judgment be sent to learned trial court and revision file be consigned to records.
Announced through videoconferencing due to Covid-19 lockdown on this 10th day of February, 2021 GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.02.10 15:31:14 +05'30' (GIRISH KATHPALIA) Principal District & Sessions Judge (HQ) Tis Hazari Courts Delhi 10.02.2021 CR No. 728/2019 Zaffaryab Hussain vs Jarar Ali & Ar. Page 8 of 8 pages