Delhi District Court
Cr 13/14 D.O. D 28.2.2014 Neelam Mahajan ... vs Ram Mahajan & Othrs on 28 February, 2014
CR 13/14 D.O. D 28.2.2014 Neelam Mahajan & Othrs vs Ram Mahajan & othrs
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE 5 (NORTH),
ROHINI , DELHI
Cr. Revision no : 13/14
Unique Case ID No : 02404R0323192013
In the matter of :
1.Smt Neelam Mahajan
w/o Sh Ram Mahajan
d/o Sh Late O.P Khanna
2. Sh Pawan Khanna
s/o Late Sh O.P Khanna
both r/o 801, 9 Harley Road,
Connaught Palace ....... Petitioners
VERSUS
1. Sh Ram Mahajan
s/o Veli Ram Mahajan
r/o 445, Kashmere Bagh
Kishan Ganj, Delhi.
2. Sh Subhash Mahajan
s/o Sh Veliram Mahajan
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CR 13/14 D.O. D 28.2.2014 Neelam Mahajan & Othrs vs Ram Mahajan & othrs
3. Smt Vijaya
w/o Sh Subhash Mahajan
Sl no.2 and 3 resident of
B51, Laxmi Kunj,
Sector 3, Rohini, Delhi .....Respondents
Date of institution of revision : 07.11.2013
Date of argument : 17.02.2014
Date of order : 28.02.2014
ORDER____________________________________________________
1. The present revision petition has been preferred by the revisionists/petitioners against the order dated 26.08.2013 ( hereinafter referred to as the " impugned order") passed by Ms Vandana , ld MM(Mahila Court) in case FIR no. 50/95, P.S Adarsh Nagar, u/s 498 A /406 IPC, whereby application of respondents moved u/s 311 CrPC was allowed and witnesses namely Neelam(PW1) and Pawan Khanna (PW3) were ordered to be recalled for their cross examination.
2. It is not necessary to set out the facts in detail. Suffice it to note , the brief facts are :-
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a) One Sh Om Prakash, father of the petitioner Neelam Mahajan, made a complaint to the P.S Adarsh Nagar stating that petitioner Neelam was married to Respondent no.1 in the year 1991 but her in-laws from the very first day of marriage itself started harassing her physically and mentally in connection with the demand of dowry. There are allegations of demand of dowry and cruelty allegedly caused by the respondents. It was also alleged that respondents, who are in-laws of the petitioner Neelam, have also threatened to kill the petitioner and her family members. On the basis of aforesaid complaint, an FIR u/s 498 A/406 /34 IPC was registered against the respondents.
(b) After investigation chargesheet was filed. Vide order dated 25.2.1999, charges u/s 498A/406/34 IPC were framed against the respondent no.1, 2 and 3 by the ld trial court and case was put to prosecution evidence.
(c) Case is at the stage of prosecution evidence and examination of PW5 is under process before the ld trial court. Respondents /accused person moved an application u/s 311 CrPC making a request to recall Neelam(PW1) and Pawan Khanna (PW3) for their cross examination on behalf of the accused persons. Vide impugned order dated 26.8.2013, ld Trial court allowed the said application subject to certain conditions and witnesses Neelam(PW1) and Pawan Khanna (PW3) were ordered to be recalled for their cross examination.
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(d) Aggrieved with the impugned order, petitioners Neelam and Pawan Khanna who are PW1 and PW3 before the ld trial court, filed the present revision.
3. At the very outset, ld counsel for the respondents have questioned the maintainability of the revision petition itself stating that impugned order has been passed on an application u/s 311 CrPC and in view of the judgment of case Sethuraman vs Rajamanickam, 2009 CrLJ 2247 , the present revision is not maintainable.
4. Per contra, ld counsel for the petitioners submitted that impugned order was not an interlocutory order and revision is very much maintainable. In support of her argument she has relied upon following authorities:
a) Sridhar Das vs state of West Bengal , 1995 Lawsuit(Cal) 113.
b) Hari Singh Mann vs Harbhajan singh Bajwa , 2201 Cri.L.J.128
c) State of Kerala vs M.M.Manikantan Nair, 2001 Cri.L.J 2346
d) Jawahar Yadav vs Chhatisgarh High Court , 2006 Cri.L.J 2078,
e)Amarnath & Anrs vs State of Haryana & Anrs, AIR 1977 SC 2185
f) RajeshBhai Chandu Bhai vs state of Gujrat, 2001 CrLJ 3039
g) Jagmohan Parashar vs State of MP , decided on 5.5.2006
h) Indrapuri primary co-operative vs sri. Bhabani Gogoi , 1991 CrLJ 1765
5. I have perused the record and heard the ld counsel for the petitioners and respondents and also perused the TCR.
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6. The only short question which falls consideration for this court is, if the present revision is maintainable or not. without touching the merits of the present case, let us see impugned order dated 26.8.2013. It is not in dispute that vide order dated 26.8.2013, ld trial court allowed the application moved u/s 311 CrPC subject to the conditions that only two separate opportunities shall be given to conclude the evidence of both above named witnesses and that too subject to the cost of Rs 2000/- out of which Rs 1000/- is payable to the complainant and Rs 1000/- to be deposited in DLSA.
7. The impugned order clearly shows that it was passed on an application u/s 311 CrPC . In view of the judgment, as relied upon by the respondents i.e Sethuraman case ( Supra), Hon'ble Supreme Court has categorically stated that order passed u/s 311 CrPC is purely an interlocutory order and the revision against such order is not maintainable. For the sake of convenience para no.4 of the said judgment is reproduced as follows:
" 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 CrPC, were interlocutory orders and as such, the revision against those orders was clearly barred under section 397(2) CrPC. 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 Crl. No 13/14 Neelam Mahajan & Othrs vs Ram Mahajan & Othrs (Page 5 of 7 ) CR 13/14 D.O. D 28.2.2014 Neelam Mahajan & Othrs vs Ram Mahajan & othrs 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 CrPC for production of documents and other on the application under section 311 CrPC for recalling the witnesses, were the orders of interlocutory nature, in which case, under section 397(2) , revision was clearly not maintainable. Under such circumstances, the leaned 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."
8. From the aforesaid judgment of Hon'ble Supreme Court , it is abundantly clear that revision petition challenging the order passed u/s 311 CrPC is interlocutory order and the revision against those order is clearly barred u/s 397(2) CrPC. In these circumstances, the present revision is also not maintainable .
9. Here it is pertinent to mention that I have also gone through all the judicial authorities as relied upon by the ld counsel for the petitioners. Most of the authorities are of various Hon'ble High Courts which cannot over ride the judgment of Hon'ble Supreme Court. As far as the case of Hari Singh Bhajan ( Supra) and state of Kerala vs Manikaran(Supra) are concerned , these authorities are basically on the power of High Court u/s 482 CrPC or power of review u/s 362 CrPC , which is not applicable to the facts and circumstances of the given case. Further, the case of Amarnath & Othrs (Supra) is basically on the point as to what is interlocutory order but in the Crl. No 13/14 Neelam Mahajan & Othrs vs Ram Mahajan & Othrs (Page 6 of 7 ) CR 13/14 D.O. D 28.2.2014 Neelam Mahajan & Othrs vs Ram Mahajan & othrs present case we have direct judgment on the point that the order passed u/s 311 CrPC is interlocutory order , therefore, same is not revisable.
10. In view of my aforesaid discussion , present revision petition is dismissed being not maintainable.
11. TCR alongwith copy of this order be sent back to the court concerned.
12. Revision file be consigned to record room.
Announced in the open (Rajesh Kumar Goel)
court today i.e 28.02.2014 ASJ-5, North /Rohini Court
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