Indian Kanoon - Search engine for Indian Law

Delhi District Court

Brig Sharven Kumar Mohan Retd vs State Of Nct And Ors on 6 May, 2024

 IN THE COURT OF MS. BHAVNA KALIA, LD. ASJ/SPECIAL
   JUDGE (NDPS)-01, DWARKA COURTS (SOUTH-WEST),
                     NEW DELHI

Criminal Revision No. 119/2024

In the Matter of:

BRIG (RETD.) SHARVEN KUMAR MOHAN
S/o Late Shri R.K. Mohan,
R/o 1501, Sleuth CGHS Ltd, Plot No. 6,
Sector-19B, Dwarka,
New Delhi-110075                   .... Petitioner/Revisionist


                             VERSUS


1. STATE OF NCT OF DELHI

2. SAROJ JAIN
R/o RZH-763, Gali No. 13,
Raj Nagar-II, Near Jat Dharamshala,
Palam Colony,
New Delhi-110045

3. SANTOSH ARORA
R/o H. No. 762, Gali No. 13,
Raj Nagar -II, Near Jat Dharamshala,
Palam Colony,
New Delhi-110045                     ....Respondents


Date of Institution of the Petition       : 24.02.2024
Date of Arguments                         : 26.04.2024
Date on which judgment was pronounced     : 06.05.2024



CR No. 119/2024                                            Page 1 of 7
                                          ORDER

1. The revision petition has been filed u/s 397 r/w/S 399 Cr.P.C. against the Order dt. 15.02.2024 (hereinafter the impugned Orders) passed by the Ld. Trial Court. Revision petition is accompanied with an application for treating matter urgent for service of respondents. Respondents were duly served and heard. Before passing of the Orders, however, the revisionist has apprised the Court that the witness who was to be examined has now expired. However, it is still submitted by the revisionist that Order may be passed on the revision petition.

2. The revision petition has been filed against the Order dt. 15.02.2024. It is to be seen whether the said Order is an interlocutory Order or not, for, if it is an interlocutory Order, revision petition is not maintainable in view of Section 397 (2) of Cr.P.C.

3. In ordinary parlance an interlocutory order is an order which is made during the progress of a cause upon some incidental matter which arises out of the proceedings. It is made during the pendency of an action which does not dispose of the case but leaves it for further action by the Court in order to settle and determine the entire controversy. It only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but does not however conclude the trial at all1.

1 Dilip Kumar Vs. Sunita Mittal, 2017 SCD 290 (Del) dt. 02.03.2017.

4. The Apex Court in the case Amar Nath vs. State of Haryana; AIR 1977 SC 2185 has observed:

"...It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties..."

5. In Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401, the Hon'ble Supreme Court of India determined the test for deciding whether the order is interlocutory or not. The relevant extract of the judgment is reproduced below :

"8. The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short "the Code") is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this: if the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage."

6. A three-Judge Bench of the Hon'ble Apex Court in Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551, laid down the following test for deciding whether an order is interlocutory or not:-

"An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2)."

7. This was upheld by the four-Judge Bench of the Hon'ble Apex Court in V.C. Shukla vs. State through CBI, AIR 1980 SC 962.

8. The above position was reiterated in Rajendra Kumar Sitaram Pande vs. Uttam, (1999) 3 SCC 134. Again in K.K. Patel vs. State of Gujarat, (2000) 6 SCC 195, the Hon'ble Apex Court stated 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 [(1977) 4 SCC 137 : 1977 SCC (Cri) 585], Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47], V.C. Shukla v. State through CBI [1980 Supp SCC 92 : 1980 SCC (Cri) 695 : AIR 1980 SC 962] and Rajendra Kumar Sitaram Pande v. Uttam [(1999) 3 SCC 134 : 1999 SCC (Cri) 393] ). 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."

9. The Hon'ble Punjab and Haryana High Court in the case of CR No. 119/2024 Page 4 of 7 Lakhwinder Singh & Others Vs. C.B.I. & Another, Crl. R. 287/97 decided on 19.05.1997 while discussing the law on interlocutory order has observed as follows:

"(7) Having referring to some of the leading cases on the subject from the Supreme Court, one can easily draw the conclusions and interlocutory order is converse of the final order. An interlocutory order is one made or given during the progress of an action. It does not finally dispose of the rights of the parties. It will be difficult to provide a straight jacket formula. The real test would be that if the judgment or the order disposes of the rights of the parties, it would be a final order. If it does not dispose of the rights of the parties, it would be an interlocutory order. If the order is merely a step in aid to adjudicate the rights, in that event, it cannot be termed to be a final order."

10. In the light of above legal position, this Court shall now examine whether the impugned order is in the nature of an interlocutory order or not.

11. The impugned order dated 15.02.2024 of the ld. Trial Court is reproduced below for reference :

BRIG RETD SHARVEN KUMAR MOHAN VS. SMT SAROJ JAIN (Dwarka Sector-23) 15.02.2024 Present: Complainant in person.

Both accused with Ld. counsels.

Bail bonds verification report in respect of both accused perused. Bail bonds are accepted.

Ld. counsel for accused No.1 has filed a list of documents CR No. 119/2024 Page 5 of 7 which are to be supplied by complainant. Copy also supplied to complainant. Said documents be expeditiously supplied by complainant against receipt, positively by NDOH.

Arguments were advanced on the application filed under Section 284 CrPC by complainant for appointment of commission.

It is stated in the application of complainant that Sunita Sharma is a prime witness in the present case. However, she is suffering from sepsis, which is a life threatening disease. It is further stated that she is bed ridden. Complainant has also contended that he has received message from the witness that she may not survive beyond few weeks. Subsequently, complainant also filed additional application in which he had placed on record one photograph of witness Sunita Sharma which is stated to be taken on 09.02.2024 at the ICU of Action Cancer Hospital. Thus, it is contended that commission be appointed for recording evidence of witness Sunita Sharma to prevent miscarriage of justice.

Reply to the application was filed by accused No. 1 Saroj Jain. No formal reply was filed by accused No.2 and arguments were only advanced. As per the reply of accused No.1, local commissioner for recording evidence cannot be appointed in a private complaint. One judgment has been relied on but the title was not mentioned and the judgment was also not filed along with reply. It is further stated that CW Sunita Sharma was discharged from the hospital which shows that she is not bed-ridden. Infact, Sunita Sharma is hale and hearty and can be cross examined personally before the Court. It is further stated that complainant being ex-army personnel and a practicing advocate, he may exercise undue influence and manipulate the evidence of CW Sunita Sharma if it is recorded through local commissioner.

Heard. Perused.

Complainant has annexed discharge summary dated 09.01.2024 of CW Sunita Sharma along with the application. Perusal of same shows that witness / patient was discharged in stable condition. Further, several medicines were prescribed on discharge. It is nowhere mentioned that the witness is not in a position to walk or is unable to move. Further, the photograph dated 09.02.2024 placed on record is stated to be of the ICU at Action Cancer Hospital. If the witness is indeed admitted in the ICU, there would be some medical documents showing such admission along with the reason for the same. No such documents have been placed on record by the complainant. While it is averred that witness has limited life span due sepsis, no basis/medical document has been placed on record by complainant to support such averment.

Accordingly, the present application is devoid of merit and CR No. 119/2024 Page 6 of 7 the same is dismissed. Copy dasti to Complainant.

Put up for FP on 19.03.2024.

ACMM/SW/Dwarka Courts/15.02.2024

12. Vide the impugned order, the ld. Trial Court had dismissed the application for appointment of commission for examination of witness. In the opinion of the Court, the impugned Order is an interlocutory Order as it does not finally dispose of the rights of the parties. It is merely a step in aid to adjudicate the rights. The Order is only to the effect that the Court had not allowed the appointment of a commission for examination of the witness. The Court had never passed any Order not allowing the examination of the witness. In no circumstances, can the same be termed as a final Order. The same is an interlocutory Order and hence, revision is not maintainable against the same. Accordingly, revision petition is dismissed.

13. Copy of this order be sent to the ld. Trial Court for information. Parties are directed to appear before the Ld. Trial Court on 08.05.2024.

14. Revision file be consigned to Record Room after due compliance. Digitally signed by BHAVNA BHAVNA KALIA Announced in the open court KALIA Date:

2024.05.06 today i.e on 06th May, 2024 15:36:19 +0530 (BHAVNA KALIA) Spl. Judge (NDPS)-01 South-West District, Dwarka Courts, New Delhi CR No. 119/2024 Page 7 of 7