Delhi District Court
Sh. Pradeep Jain vs M/S Bansal Textiles on 25 October, 2018
IN THE COURT OF RAKESH KUMAR SHARMA,
SPECIAL JUDGE (PC ACT) CBI02 CENTRAL,
TIS HAZARI COURTS, DELHI
CR NO. 559/2018
SH. PRADEEP JAIN
S/O SH. INDER JAIN
PROPRIETOR OF M/S SUMIT CLOTH HOUSE
HOLLY GROUND, SUBZI MANDI, SADAR BAZAR,
GURGAON, HARYANA122001.
.......Appellant
Versus
M/S BANSAL TEXTILES
REPRESENTED THROUGH ITS
PROPRIETOR OF SH. ARUN KUMAR
R/O 299, MAIN ROAD, MANDAWLI,
DELHI110092.
.......Respondent
Date of Institution : 06.08.2018
Date when reserved for Judgment : 18.10.2018
Date of Judgment : 25.10.2018
JUDGMENT
1. This is a revision petition filed by the accused (before Ld. Trial Court) against the order dated 12.07.2018 passed by ld. Trial Court whereby his application for waiver of cost imposed by ld. Trial Court on 29.08.2017 has been dismissed.
CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 1
2. Ld. Counsel for accused relied upon 1997 Crl. Law Journal 1897 Amarnath & Ors. Vs. State of Haryana, in support of his contentions that the revision petition is maintainable. He also relied upon judgment dated 15.07.2009 passed by Honb'le Delhi High Court in Crl. M.C. No. 3773/08 M/s Noval Vision Electronics Pvt. Ltd. & Anr. Vs. State & Anr., as reported in Indian Kanoon to contend that there is no provision in Cr.P.C.
for imposition of cost and hence, impugned order is bad.
3. ld. Counsel for complainant (before ld. Trial Court) opposed the petition both regarding its maintainability and also on merits.
4. I have heard ld. Counsels for the parties and have also gone through the record.
5. Section 397 Cr.P.C. is as follows: "Calling for records to exercise powers of revision.(1) The High Court or any Sessions Judge may call for and examine the record of any CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 2 proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
(underlining by me)
6. It is clear from the provision that even if an order passed by ld. MM is incorrect, illegal, improper or irregular, if the order is an interlocutory order, the revision petition is not maintainable. Hence, the revision petition is maintainable only if the impugned order is not interlocutory.
7. Ld. Counsel for the accused contended that since in the impugned order itself, after dismissing the application for CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 3 waiver of cost, ld. Trial Court has directed that "let cost be paid positively on the next date failing which necessary adverse order shall be passed", right of the accused has been finally decided and hence, the impugned order is not interlocutory and is final and hence, the present revision petition is maintainable. He relied upon paras no. 6, 10 & 11 of Amarnath (supra) in support of his contention which are as follows:
"6. Let us now proceed to interpret the provisions of S.397 against the historical background of these facts. Sub-section (2) of S. 397 of the 1973 Code may be extracted thus:
"The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-s. (2) of S.397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in S. 397(2) of the 1973 Code has been used in a restricted sense and not in any CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 4 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. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. "thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.
xxxxxxxxxxxxxxx
10. Applying the aforesaid tests, let us now see whether the order impugned in the instant case can be said to be an interlocutory order as held by the High Court. In the first place, so far as the appellants are concerned, the police had submitted its final report against them and they were released by the Judicial Magistrate. A revision against that order to the Additional Sessions Judge preferred by the complainant had failed. Thus the appellants, by virtue of the order of the Judicial Magistrate as affirmed by the Additional Sessions Judge acquired a valuable right of not being put on trial unless a proper order was made against them. Then came the complaint by respondent No. 2 before the Judicial Magistrate which was also dismissed on merits. The Sessions Judge in revision however, set aside the order dismissing the complaint and ordered further inquiry. The Magistrate on receiving the order of the Sessions Judge summoned the appellants straightway which meant that the CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 5 appellants were to be put on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced or that any right of their's was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightway was merely an interlocutory order which could not be revised by the High Court under sub-sections (1) and (2) of S.397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded ws undoubtedly a matter of moment and a valuable right of the appellants had been taken away by the Magistrate in passing an order prima facie in sheer mechanical fashion without applying his mind. We are, therefore satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial.
11. For these reasons, the order of the Judicial Magistrate, 1st Class, Karnal dated November 15, 1976 cannot be said to be an interlocutory order and does not fall within the mischief of sub-s(2) of S. 397 of 1973 Code and is not covered by the same. That being the position, a revision against this order was fully competent under S.397 (1) or under Section 482 of the 1973 Code, because the scope of both these sections in a matter of this kind is more or less CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 6 the same."
8. I have found that it has been held in (2004) 5 SCC 729 State represented through Inspector of Police & Ors. vs. N.M.T. JOY Immaculate by full bench of Hon'ble Supreme Court as follows: "12. Same question has recently been considered in K. K. Patel v. State of Gujarat. In this case as criminal complaint was filed against the Superintendent of Police and Deputy Superintendent of Police alleging commission of several offences under the Indian Penal Code and also under Section 147G of the Bombay Police Act. The Metropolitan Magistrate took cognisance of the offence and issued process to the accused, who on appearance filed a petition for discharge on the ground that no sanction as contemplated by Section 197 CrPC had been obtained. The Metropolitan Magistrate dismissed the petition against which a revision was filed before the Sessions Judge, who allowed the same on the objection raised by the accused based upon Section 197 CrPC and also Section 161 (1) of the Bombay Police Act, which creates a bar of limitation of one year. The revision preferred by the complainant against the order of discharge was allowed by the High Court on the ground that the order passed by the Metropolitan Magistrate rejecting the prayer of the accused to discharge them was an interlocutory order. In the appeal preferred by the accused, this Court after referring to Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra and V. C. Shukla v. State held CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 7 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. 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. It was further held that as in the facts of the case, if the objections raised by the accused were upheld, the entire prosecution proceedings would have been terminated, the order was not an interlocutory order and consequently it was revisable.
13. Section 167 CrPC empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 CrPC confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 Cr.PC confers power upon a court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by subsection (2) of Section 397 CrPC, a CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 8 revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 06.11.2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day.
(underlining by me)
9. It is clear from the authority which also takes into account Amarnath (supra) relied upon by ld. Counsel for petitioner that the test is whether the proceedings before the Trial Court would culminate if the objections of the accused herein are upheld. If yes, the impugned order is final but if the proceedings before the Trial court would continue even if the contentions of the accused herein are upheld, the impugned order is interlocutory and the present revision petition is not maintainable.
10. As noted above, by way of the impugned order, the application of the accused for waiver of the cost imposed earlier by Ld. Trial Court has been dismissed. There cannot be any doubt that even if the said order passed by ld. Trial Court is set aside, the same shall not result in culmination of the CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 9 proceedings before the Trial Court and the proceedings would continue. Hence, it is clear that in view of N.M.T. Joy Immaculate (supra), the present revision petition is not maintainable.
11. In view of the above discussions, the present revision petition is dismissed as not maintainable.
12. TCR be sent back to Trial Court with copy of this Judgment.
13. The revision file be consigned to record room after due compliance as per rules.
Digitally signed by RAKESH RAKESH KUMAR
(ANNOUNCED IN THE OPEN KUMAR SHARMA
COURT ON 25.10.2018) Date:
SHARMA 2018.10.26
15:35:39 +0530
(RAKESH KUMAR SHARMA)
SPECIAL JUDGE (PC ACT)(CBI):02
THC/ DELHI
CR. No. 559/2018 Pradeep Jain vs. M/s Bansal Textiles 10