Delhi District Court
Ashok Paul vs Dr. Saloni Chandermore on 28 September, 2018
1
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS
NEW DELHI
Criminal Revision No.: 389/2017
In the matter of:
Ashok Paul,
Prop. Of A. Lakhanpal,
Medical & Scientific Instruments,
D-88, Marg-9, Saket,
New Delhi-110017.
Through his Attorney,
Kali Charan Bhately,
S/o late Vidya Ram Bhately,
R/o B-710A, Sangam Vihar,
New Delhi. ...... Applicant
versus
Dr. Saloni Chandermore,
D/o Kishore Jaiswal,
R/o 2B/31, 3rd Floor,
Vrindavan Society,
Near Vrindavan Bus Stop,
Police Station- Robori,
Thane City, Thane West,
Mumbai-4000601. ..... Respondent
Date of institution of Application : 07.11.2017
Date of conclusion of arguments : 28.09.2018
Date of decision : 28.09.2018
CR No. 389/2017 Ashok Paul v. Dr. Saloni Chandermore 28.09.2018
2
ORDER
This application under section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C.), made by the applicant Ashok Paul (hereinafter referred to as 'the complainant') against respondent Dr. Saloni Chandermore (hereinafter referred to as 'the accused'), is directed against the order dated 19.09.2017, passed by the court of Ms. Niharika Kumar, Metropolitan Magistrate-04, N.I. Act, South, Saket, New Delhi, whereby, in complaint case no. 469007/2016 entitled Ashok Paul v. Dr. Saloni Chandermore, the Learned Metropolitan Magistrate allowed the application under section 205 Cr.P.C. read with section 317 Cr.P.C. made on behalf of accused seeking permanent exemption from personal appearance.
2. The circumstances giving rise to the application are that the complainant made a complaint under section 138 of the N.I. Act against the accused. The details of allegations made in the complaint under Section 138 of the N.I. Act are not necessary for the disposal of this application. During the pendency of the complaint, the accused made an application under section 205 Cr.P.C. read with section 317 Cr.P.C. on 26.7.2017 which was allowed vide impugned order dated 19.09.2017.
CR No. 389/2017 Ashok Paul v. Dr. Saloni Chandermore 28.09.2018 3
3. Feeling aggrieved of the impugned order, the applicant has made the present application.
4. I have heard counsel for the parties and have gone through the record of the complaint case no. 469007/2016 entitled Ashok Paul v. Dr. Saloni Chandermore, pending before the Learned Magistrate.
5. Having drawn my attention on the contents of the application, the impugned order dated 19.09.2017 and the record of complaint case no. 469007/2016, pending before the Learned Metropolitan Magistrate, it is submitted by counsel for the applicant that the impugned order suffers from illegality and has been passed without application of mind, therefore, the same be reversed. It is further submitted that learned trial court failed to appreciate that section 205 Cr.P.C. only grant permanent exemption from personal appearance if he or she after issuance of a summons appeared before trial court and he or she put reasonable reason grounds, whereas the respondent last six year avoided not to appear even after number of times issuance of NBW by learned trial court.
6. Per contra, it is submitted by counsel for the respondent that the application does not have any merit and is liable to be dismissed.
CR No. 389/2017 Ashok Paul v. Dr. Saloni Chandermore 28.09.2018 4
7. I have given my thoughtful consideration to the submissions made on behalf of the parties.
8. As mentioned above, by way of impugned order, the Learned Magistrate allowed the application under section 205 Cr.P.C. read with section 317 Cr.P.C. made on behalf of accused seeking permanent exemption from personal appearance.
9. During the course of arguments several extraneous factual aspects have been contended on behalf of both the parties which seems to be irrelevant as the matter for consideration here is to examine legality of the impugned order.
10. A perusal of impugned order reveals that the Learned Magistrate has used discretion to allow exemption from personal appearance judiciously subject to imposing of certain conditions mentioned in the order. Even otherwise, revision application against such order is barred.
11. It has been held by the Hon'ble Delhi High Court in Smt. Savitri Devi & Another v. State & Another, 1987 SCC CR No. 389/2017 Ashok Paul v. Dr. Saloni Chandermore 28.09.2018 5 Online Del 284 : ILR (1987) 2 Del 319 that an order rejecting or accepting an application for exemption from personal appearance is an interlocutory order and, in this view of the matter, sub section (2) of section 397 creates a complete bar to entertain or take cognizance of the revision petition against an interlocutory order of the lower court. Similar view has also been taken by Hon'ble High Court of Rajasthan in Bhupendra Kumar v. State of Rajasthan, 1996 Cri.L.J 3180 wherein it has been held that an order dispensing with the personal attendance is an interlocutory order, hence, jurisdiction to entertain revision against such order is barred under section 397 (2) Cr.P.C. The Hon'ble Andhra Pradesh High Court has also in Mohd. Sajid Qureshi v. R. Prathap & Anr, 2003 SCC Online AP 1139 held that an order allowing application seeking exemption from personal appearance is interlocutory order and in view of section 397 (2) Cr.P.C. no revision lies against those orders.
12. Counsel for the applicant has referred to the judgment of Hon'ble Bombay High Court in Avinash Trimbakrao Dhondage v. The State of Maharashtra & Anr., in Cr.W.P. 159/14 & Ors. in support of maintainability of revision application. This judgment is not applicable in the facts and circumstances of the case.
CR No. 389/2017 Ashok Paul v. Dr. Saloni Chandermore 28.09.2018 6
13. In view of above discussion, I am of the clear view that the order of grant of exemption from personal appearance is an interlocutory one, present revision application against such order, is barred under section 397 (2) Cr.P.C. This application under section 397 Cr.P.C is, accordingly, dismissed.
14. File be consigned to the Record Room. The record of the complaint case no. 469007/2016 entitled Ashok Paul v. Dr. Saloni Chandermore called from the court of the Learned Magistrate be sent back along with a copy of this order.
15. Parties are directed to appear before the Learned Trial Court on 03.10.2018 at 2 PM.
Pronounced in open court (DR. RAKESH KUMAR) on 28th September 2018 Special Judge (PC Act) (CBI) South District, Saket Courts New Delhi CR No. 389/2017 Ashok Paul v. Dr. Saloni Chandermore 28.09.2018