Delhi District Court
Gyaneshwar vs State on 15 November, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
C.R No.19/2014
GYANESHWAR .........Revisionist
VERSUS
STATE ........Respondent
ORDER
By this order I propose to decide the revision petition filed by the Revisionist against the impugned order dated 13.10.2014 by which the application filed by the Revisionist under section 311 Cr.P.C. for recalling witnesses PW3, PW4 and PW5 had been dismissed by the Ld. Trial Court. The Trial Court had dismissed this application filed for the simple reason that a similar application filed before for recalling the said witnesses under section 311 Cr.P.C. had been dismissed by a detailed order on 22.02.2014. In the order it was stated that there was no ground made out for reconsidering the said order again.
C.R. No.19/14 1 of 10
2. I have heard the Ld. Counsel for the Revisionist on the question of maintainability of the revision petition as according to me the order passed under section 311 Cr.P.C. was an interlocutory order against which no revision petition would lie under section 397(2) of the Code.
3. Ld. Counsel for the Revisionist during his submissions made reference to many of the Judgments of the different courts in order to convince me that an order under section 311 Cr.P.C. is an interlocutory order. Before going on to refer to the judgments referred by by the Ld. Counsel for the Revisionist, I would like to refer to the judgment of the Hon'ble Supreme Court in Sethuraman vs Rajamanikam, (2009) 5 Supreme Court Cases 153, wherein it was clearly held by the Hon'ble Supreme Court that an order under Section 311 Cr.P.C is an interlocutory order. The relevant part of the judgment reads as under :
"Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under C.R. No.19/14 2 of 10 Section 311 Cr.P.C, were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. 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 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 Cr.P.C for production of documents and other on the application under Section 311 Cr.P.C for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned 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."
4. The Judgements referred to by the Ld. Counsel for the Revisionist are: C.R. No.19/14 3 of 10 I. Jivan Vinayakrao Baride v. Dinesh Ramdulare Gupta, 2009 Crl. L.J. 2540 I have gone through the said judgment. It does not appear to be applicable in the given facts of the case. In the said case the directions had been given by the Judicial Magistrate, First Class to register an FIR under section 154 of the Code. against the respondent to investigate the case under section 156(3) of the Code. The same had been challenged in a revision petition. One of the submissions made before the court was that the said order was an interlocutory order and, therefore, no revision would lie against the same. In this context the Court had observed "This point is no more resintegra and this Court has taken a view that revision is maintainable". To sum up according to the said observation the revision petition is maintainable against an order passed by a Court to direct the police to register an FIR under Section 156(3). This, however, is not the case in the present revision petition.
C.R. No.19/14 4 of 10
II. U.T. Of Dadra and Haveli & Anr. v. Fatesinh
Mohansinh Chauhan, 2006 CRI.L.J. 5436.
It is a case where there was an application filed under section 311 Cr.P.C. for summoning witnesses after defence evidence had been recorded was allowed by the Sessions Court and the same was challenged before the Hon'ble High Court. Against the orders passed by the Hon'ble High Court the matter had reached Hon'ble Supreme Court. From the said judgement it appears that before the Hon'ble High Court or even before the Supreme Court, there was not a issue raised with regard to the maintainability of a revision petition against an order passed under section 311 Cr.P.C. on the ground that it was an interlocutory order. Meaning thereby the question where an order under section 311 Cr.P.C. had not been not gone into. It may further be noted that in the judgment of the Hon'ble Supreme Court in Sethuraman v. Rajamanickam (supra) there is a clear observation that an order on an application under section 311 Cr.P.C. is an interlocutory order.
C.R. No.19/14 5 of 10
III. Mohanlal Shamji Soni v. Union of India, 1991 Crl.L.J..
1521.
Like in the above judgment referred to in this judgment also though there is a reference of a criminal revision having been filed against an order passed under section 540 of the old Code (corresponding to section 311 of the new Code.) but there was no discussion whether an order passed under section 311 Cr.P.C. is an interlocutory order.
IV. Satyajit Banerjeete v. State of West Bengal, 2005 Crl.L.J. 648.
This judgment is not applicable in the present case. In the given facts of the said case the Hon'ble High Court had made an observation that where prosecution lacks in bringing necessary evidence the Trial Court ought to have invoked its power under section 311 Cr.P.C. and summoned certain witnesses. There is nothing, however, to indicate in the said judgement that there was any order under section 311 Cr.P.C., which was under a challenge in a revision petition.
C.R. No.19/14 6 of 10 V. M/s Amalgamated Bean Coffee Trading Co. Ltd v.
Xplore Source Consultancy Services Pvt. Ltd., 2014[3] JCC[MI] 185.
I have gone through the judgment. I find it difficult to understand that as to how this judgement will be of help in deciding the issue as to whether an order passed under section 311 CR.P.C. is an interlocutory order or not. There is an observation of the Hon'ble High Court which has been highlighted according to which "It is a well settled principal of law that rules of procedure are handmade of justice and should never be made a tool to deny justice or perpetuate injustice. The procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice." There can be no two opinion that this is the settled position of law. As noted above, the issue I am confronted that is as to whether an order passed under section 311 CR.P.C. is subject to the revision by this Court or not. I do not find any assistance on this count from this judgement.
C.R. No.19/14 7 of 10
VI. M/s Shareen Hire Purchase Pvt. Ltd. v. Kulwinder
Kaur, 2011 (3) R.C.R. (Criminal) 299.
It is a case where in a case under section 138 of Negotiable Instrument Act during the crossexamination the witness had been directed to place on record certain documents and he had accordingly placed the same. The other party, however, did not crossexamine the witness on the said documents. Thereafter there was an application filed under section 311 Cr.P.C. for recalling the said witness and the same was dismissed on the ground allowing the reexamination of the witness would mean reopening the whole case and it would prolong the trial. Against the said order, there was a revision preferred before the court of Ld. Sessions Judge. The same was dismissed. Thereafter there was a petition filed under section 482 Cr.P.C. challenging the same. Though I find in the judgment a discussion with regard to the powers to be exercised under section 311 Cr.P.C. but I find no discussion on the issue as to whether an order passed under section 311 Cr.P.C. by the Trial Court was an interlocutory order or not.
C.R. No.19/14 8 of 10
VII. Bhadauria Tiles v. RamKumar Singh Kushwah, 2012
ACD 328.
In this case there were two interlocutory applications filed, one under section 45 of Indian Evidence Act and another under section 311 of the Code. Both the applications had been rejected by the Trial Court. The Revisional Court allowed the application filed under section 45 of the Indian Evidence Act but dismissed the revision filed against the order under section 311 of the Code. It is against this application allowed by the Ld. Sessions Court under Section 45 of the Indian Evidence Act, the revision was preferred to the Hon'ble High Court. Therefore, as far as application under section 311 Cr.P.C. was concerned, there was no issue before the Hon'ble High Court.
5. After having examined the above judgements referred by the Ld. Counsel for the Revisionist, I find that there is nothing in these judgements which can throw light on the issue as to whether an order under section 311 Cr.P.C. for recalling witnesses is or is not an interlocutory order and in turn as to C.R. No.19/14 9 of 10 whether a revision against such an order under section 397(2) is maintainable or not.
7. On the contrary in the light of the judgement of Hon'ble Supreme Court in Sethuraman v. Rajamanickam (supra) it can be said that the impugned order passed while dismissing application under section 311 Cr.P.C. for recalling the witness was an interlocutory order and also justified in the given circumstances and in my opinion no revision petition under section 397(2) of the Code against such an order is maintainable.
8. In view of the above discussion, I am dismissing this revision petition as not maintainable. A copy of this order be sent to the Trial Court. File be consigned to the record room.
Announced in the Open Court ( L. K. GAUR )
on 15 day of November, , 2014 Special Judge, P.C. Act
th
(CBI09), Central District,
Delhi.
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