Allahabad High Court
Sheela Devi And Another vs State Of U.P. And 7 Others on 6 July, 2018
Equivalent citations: AIRONLINE 2018 ALL 2677
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL REVISION No. - 1344 of 2018 Revisionist :- Sheela Devi And Another Opposite Party :- State Of U.P. And 7 Others Counsel for Revisionist :- Sadhna Upadhyaya,Sant Sharan Upadhyay Counsel for Opposite Party :- G.A.,Santosh Kumar Tiwari Hon'ble Rajeev Misra,J.
1. Heard Ms. Samridhi Upadhyay, learned counsel for the revisionists, learned AG.A. for the State and Mr. S. K. Tiwari, learned counsel appearing on behalf of the opposite party nos. 2, 5 and 8.
2. This criminal revision has been filed by the first informant alongwith prosecutrix challenging the order dated 10.04.2018 passed by the court below, i.e., the Additional Sessions Judge, F.T.C. No.2, Aligarh in Session Trial No. 659 of 2016, (State Vs. Babu Lal and others) under Section 376 (d) and 323 I.P.C., P.S.-Gonda, District-Aligarh whereby the application dated 02.02.2018 (paper no. 11kha) filed by the revisionist no. 1, Smt. Sheela Devi in terms of section 311 Cr.P.C., has been rejected.
3. From the record, the Court finds that an incident occurred on 30.09.2015. In respect of the said incident, a first information report dated 30.09.2015 was lodged by the revisionist no.2 namely Indrajeet, who is the husband of the revisionist no.1-Sheela Devi with the Police Station-Gonda, District-Aligarh, which was registered as Case Crime No. 206 of 2015 under Sections 376 (d), 34, 323, 504 and 506 I.P.C., P.S.-Gonda, District-Aligarh. In the aforesaid F.I.R., seven persons were named as accused, who are the opposite party nos. 2 to 8 herein.
4. According to the F.I.R. dated 30.09.2015, it is alleged that the accused persons initially assaulted the revisionist no.2, Indrajeet causing injuries upon his person. Thereafter, in front of the revisionist no.2, Indrajeet, the accused persons namely, Sukhveer-opposite party no. 8, Babu Lal-opposite party no.2 and Sukka-opposite party no. 4 are said to have committed rape upon revisionist no.1-Sheela Devi. While the aforesaid act was being committed, Phulwati-opposite party no.5 and Dulari Devi-opposite party no.6 stood there on guard.
5. After the lodging of the aforesaid F.I.R. dated 30.09.2015, the injured, i.e., the revisionists/the victims were sent for medical examination. The Doctor, who conducted the medical examination upon the revisionist no.1-Sheela Devi, prepared an injury report wherein it is recorded that three injuries were found on the body of the revisionist no.1-Sheela Devi. Two of the injuries were contusions and one injury was of abrasion. The Doctor opined that all the injuries are simple in nature caused by hard blunt object. It was further stated that all the injuries are fresh in nature. In respect of the medical examination conducted upon revisionist no.1-Sheela Devi, the lady Doctor, who conducted the medical examination upon her person clearly opined the commission of the offence as complained by the revisionist no.1.
6. With regard to the revisionist no.2, Indrajeet, the doctor, who conducted the medical examination upon his person, found four injuries on his body. Two of the injuries were abrasions whereas the other two injuries were lacerated wounds. In the opinion of the Doctor, all the injuries except injury no. 4 were found to be simple in nature caused by hard blunt object and were fresh in nature. After the medical examination of the injured, the statement of the revisionist no.1-Sheela Devi was got recorded in terms of Section 164 Cr.P.C. on 27.06.2015 wherein the victim Sheela Devi clearly implicated Sukhveer, Babu Lal and Skukka for an offence punishable under Section 376 (d) I.P.C.
7. Upon completion of the statutory investigation as contemplated under Chapter 12 Cr.P.C., the police submitted a charge sheet dated 11.02.2016 in Case Crime No. 206 of 2015 under Section 376 (d), 34, 323, 504 and 506 I.P.C., Police Station-Gonda, District-Aligarh. All the named accused persons, i.e. opposite party nos. 2 to 8 herein were charge sheeted under Section 376(d), 34, 323, 504 and 506 I.P.C. The charge sheet contained the names of as many as five witnesses including the present revisionists namely Sheela Devi and Indrajeet. Upon submission of the aforesaid charge sheet, cognizance was taken upon the same and the matter was committed to the court of Sessions, which was registered as Session Trial No. 659 of 2016 (State Vs. Babu Lal and others) P.S.- Gonda, District-Aligarh.
8. During the pendency of the trial, the statement of the revisionist no.1, Sheela Devi was recorded firstly on 25.01.2018 and thereafter on 02.02.2018. It is the case of the revisionists that the statement of the victim, i.e., revisionist no.1-Sheela Devi recorded as P.W.-2 is not the same as was given by her before the court below. In the light of the aforesaid, the revisionist no.1-Sheela Devi filed an application dated 02.02.2018 praying therein that she be recalled for giving her testimony a fresh in terms of Section 311 Cr.P.C.
9. The aforesaid application was opposed by the accused persons, i.e., opposite party nos. 2 to 8 and they filed their objection dated 05.04.2018.
10. Ultimately, the court below by means of the impugned order dated 10.04.2018 rejected the application dated 02.02.2018 filed by the revisionist no.1-Sheela Devi. A perusal of the order dated 10.04.2018 passed by the court below will go to show that the application dated 02.02.2018 has been rejected on the findings that the statement of the victim- Smt. Sheela Devi as P.W.-2 was recorded on 25.01.2018. Thereafter, P.W.-2 was cross-examined by the counsel for the accused. However, the further recording of the statement of P.W.-2 Sheela Devi, the victim was stayed as the statement of the victim under Section 164 Cr.P.C. had not been recorded. Whatever statement was recorded was certified by the Presiding Officer that the statement has been recorded by the Bench Secretary on the direction of the Presiding Officer. The statement so recorded was signed by the Presiding Officer. However, neither on 25.01.2018 or on the next day any application was given by the victim that no statement was given by her but her statement has been written by the court officials. On 02.02.2018 the statement of the victim purported to be under Section 164 Cr.P.C. was recorded. No further evidence was recorded on any other issue on the said date. No allegation has been made by the victim that she has any enmity with any or with the court officials and the court officials in connivance with the accused have got the statement forged. In such circumstances it cannot be believed that the statement of the victim was recorded in the absence of the Presiding Officer.
11. Feeling aggrieved by the order dated 02.02.2018, the revisionists have now approached this Court by means of the present criminal revision.
12. Sri S. K. Tiwari, the learned counsel appearing on behalf of opposite party nos. 2, 5 and 8 has raised a preliminary objection regarding the maintainability of the present criminal revision.
13. Before proceeding to consider the preliminary objection raised by the learned counsel representing the opposite party nos. 2, 5 and 8, it is necessary to re-produce the provisions of Sections 311 and 397 Cr.P.C., as the case in hand revolves around the aforesaid two sections of Cr.P.C. Sections 311 and 397 Cr. P.C are reproduced herein below:-
"311. Power to summon material witness, or examine person present. --Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
"397. 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 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.
Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
(2) 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.
(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."
14. According to the learned counsel for the opposite party nos.2, 5 and 8, an order passed on an application under Section 311 either way is an interlocutory order and therefore, it is not revisable in terms of Section 397 Cr.P.C. To buttress the said submission, learned counsel for the opposite party nos. 2, 5 and 6, initially invited the attention of the Court to the order dated 30.11.2006 passed by His Lordship, Hon'ble Vinod Prasad J. in Criminal Revision No. 6372 of 2016 (Ashif Hussain Vs. State of U.P. and another) alongwith other connected criminal revisions whereby the issue as to whether an order passed on an application filed under Section 311 Cr.P.C. is revisable or not has been discussed and ultimately referred to a larger bench for consideration. The aforesaid order is unreported. Reliance was placed upon paragraph 27 of the aforesaid judgement, which is quoted herein under:
"27. Since I differ with my esteemed brother, Hon'ble V. K. Chaturvedi, J. on the above law point therefore I consider it appropriate to exercise my power under Chapter V Rule 2 (ix) (b) of the Allahabad High Court Rules (RULES OF THIS COURT 1952) and refer all the above revisions before the Ho'ble the Chief Justice with humble request to His Lordship to constitute a larger bench (division or full) as his Lordship deems fit and proper, to decide these revisions including the question of maintainability of all these revisions at the behest of the accused against whom an order has been passed, under Section 311 Cr.P.C. by the trial court, refusing to exercise it's power to recall or resummon witnesses for further cross examination by them. The matter to me seems to be very urgent as it relates with interpretation of a statutory provision and this Court is saddled with spate of such revisions piled up in it's dockets."
15. The learned counsel for the opposite party nos. 2, 5 and 8 then invited the attention of the Court to the Division Bench judgement dated 14.02.2007 passed on the reference made by the learned Single Judge as noted above. He invited the attention of the Court to para-6 of the judgement wherein the Division Bench answered the reference and held that an order passed by the Sessions Judge on an application under Section 311 Cr.P.C. refusing to summon a witness sought to be recalled by the accused is purely an interlocutory order from the point of view of the accused-appellant and therefore, no revision against that is maintainable. For ready reference, paragraph 6 of the Division Bench judgement rendered in the case of Asif Hussain Vs. State of U.P. and another reported in 2007 (57) ACC 1036, is reproduced herein below:
" 6. We, therefore, answer the reference by holding that the order of the learned Sessions Judge under Section 311 Cr.P.C. Refusing to summon witnesses, sought to be called by the accused, is a purely interlocutory order from the point of view of the accused-appellant and no revision against the same is maintainable."
16. On the aforesaid conclusion as drawn by the Division Bench, the learned counsel representing the opposite party nos. 2, 5 and 8 submits that the present criminal revision, which arises out of an order passed on an application under Section 311 Cr.P.C is not maintainable.
17. It may, however, be noted that the distinction arises out of the observations made in para-6 of the said judgement wherein it was held that an order passed by the sessions judge on an application under Section 311 Cr.P.C. filed by the accused is purely an interlocutory order whereas in the present case, the application under Section 311 Cr.P.C. was filed by the victim, who was no one else but the wife of the first informant.
18. He thereafter invited the attention of the Court to the judgement of the Apex Court in the Case of Sethuraman Vs. Rajamanickam reported in 2009 (65) ACC 607. Referring to paragraph 4 of the aforesaid judgement, he submits that the present criminal revision filed by the revisionist is not maintainable. Paragraph 4 of the aforesaid judgement relied upon by the learned counsel representing the contesting opposite party nos. 2, 5 and 8 is reproduced herein under:
"4. 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 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. "
19. Apart from the above, reference was also made to the judgement of the Apex Court in the case of Raja Ram Prasad Yadav Vs. State of Bihar and another reported in 2013 (14) SCC 461 wherein the Apex Court in paragraphs 22 and 23 has laid down the guide lines, which are to be followed while exercising the jurisdiction in terms of Section 311 Cr.P.C. Paragraphs 22 and 23 of the aforesaid judgement are extracted herein below:
"22. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) - Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 14 and 15:
"14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.
The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.
The very use of words such as ''any Court', ''at any stage', or ''or any enquiry', trial or other proceedings', ''any person' and ''any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habubullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr. (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387)."
23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
20. In the light of the aforesaid, it is vehemently urged by the learned counsel appearing on behalf of the opposite party nos. 2, 5 and 8 that the present criminal revision arises out of an interlocutory order and is therefore clearly not maintainable. Elaborating his submission the learned counsel submits that even if the revision is allowed it will result in the continuation of the proceedings of the court below. Nothing has been finally decided. Therefore, it is urged that in view of the settled law in this regard the present criminal revision is not maintainable.
21. Ms. Samridhi Upadhyay, learned counsel appearing on behalf of the revisionists rebutting the preliminary objection raised by the learned counsel representing the opposite party nos. 2, 5 and 8 invited the attention of the Court to the three judges' judgement of the Apex Court in the case of Madhu Limaya Vs. the State of Maharashtra reported in 1997 (4) SCC 551. Referring to paragraph 14 of the aforesaid judgement, it was submitted that the Apex Court in the aforesaid judgement has clearly held that the order passed by the Magistrate taking cognizance under Section 511 I.P.C. cannot be said to be an interlocutory order on the ground that the allegations were made against the victim in his personal capacity and not in his capacity of discharging the functions as a Minister. The objection raised by the accused was rejected by the court of session and the revision filed by the accused against the said order of the court of session was also dismissed as being not maintainable. Following has been held in paragraph 14 of the aforesaid judgement:-
"14. In S. Kuppuswami Rao v. The King MANU/FE/0001/1947: [1947]FCR, 180 Kania C. J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. Lord Esher M. R. said in Salaman v. Warner [1991] 1 Q. B. 734 "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J. and Lope L. J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time, there was no bar like section 397 (2) was not a "final order" within the meaning of section 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words 'interlocutory order" occurring in section 397 (2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397 (1). On such a 'strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the, 1898 Code. In what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies ? Such cases will be very few and far between.
It has been pointed out repeatedly, vide, for example, The River Wear Commissioners v. William Adamson(1) and R. M. D. Chamarbaugwalla v. The Union of India MANU/SC/0020/1957: [1957]1SCR, 930 that although the word occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order.
In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order".
There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders.
They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397 (2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course. "
22. Reliance was also placed upon the Full Bench judgement of this Court in the case of Munna Singh @ Shivaji Singh Vs. State of U.P. and others reported in ADJ 2011 (9) 98 to submit that the Full Bench after considering the entire gamut of case law, opined that an order passed in terms of Section 145 Cr.P.C. (1) followed by an order under Section 146 (1) Cr.P.C. or even passed simultaneously falls within a category of order which is between an interlocutory order and a final order and therefore, a revision would be maintainable. Paragraphs 12, 13, 14, 25, 27, 28, 29, 30, 31, 32, 33, 34, 40 and 41 of the aforesaid judgement relied upon by the learned counsel for the revisionist are reproduced herein below:-
"12. An illustration that would be worth referring is in the case of Amar Nath and others Vs. State of Haryana and others, reported in AIR 1977 Supreme Court 2185 where the choice of the legislature to introduce the bar was traced out and explained in paragraph 6 of the said judgment as follows:-
6. ....... 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-section (2) of Section 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 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. 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 Section 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."
13. In the case of Smt. Parmeshwari Devi (supra) the law laid down in Mohan Lal's case (supra) was explained as follows:-
"7. The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-section (2) of Section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights.
8. A somewhat similar argument came up for consideration before this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat (1968) 2 SCR 685 = (AIR 1968 SC 733). The controversy there centred round the meaning of Article 134(1) (c) of the Constitution and the Court examined the meaning of the words "final" and "interlocutory." It was held that the meaning "had to be considered separately in relation to the particular purpose for which it is required" to be interpreted. No single test can be applied to determine whether an order is final or interlocutory. Then it has been held by this Court in that case as follows-
"An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals." It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed.........."
14. Thus, in view of the aforesaid decisions, it is clear that no exclusive or exhaustive singular test can be framed in a straight jacket formula to determine as to whether an order would be final or interlocutory. The meaning of the words have to be understood in the light of the facts of each particular case in relation to the particular purpose for which the word is required to be interpreted. This in our opinion is reflected in the decision in the case of Ranbir Singh (supra) where while upholding the order of the High Court it was clearly indicated that where the parties have already entered into a litigation before the Civil Court then such proceedings should be avoided.
25. While carving out a distinction between the orders of a final nature and interlocutory nature the apex court in the case of V.C. Shukla Vs. State, AIR 1980 Supreme Court 962 gave the nomenclature of an "intermediate order" to be between a final order and the initiation of a proceeding which may be affecting the interest of either of the parties, and could not be termed as a pure and simple interlocutory order. This view came to be followed by a learned Single Judge of this Court earlier who has made the present reference in the case of Gulab Chand Vs. State of U.P. 2004 (48) ACC 579 and again by a learned single Judge of this Court in the case of Lakshmi Kant Dubey Vs. Smt. Jamuni & others, reported in 1999 (39) ACC 649.
27.The term "final order" means a decision finally affecting the rights of the contending parties. It is an issue which goes to the foundation of a trial and can be never questioned if it has been allowed to stand. It would therefore be final. The test of such finality would depend upon the facts of a case indicating termination of proceedings and ultimately affecting the fate of the parties. A final order is one which leaves nothing more to be decided by its own force.
28. The word 'Final' connotes that which comes at the end. It marks the last stage of a process leaving nothing to be looked for or expected. It is something ultimate in nature. It puts to an end to something or in other words, it brings to a close any strife or uncertainty. It is the conclusion of an event, that which comes last. It connotes the finishing of some act and completion of some beginning. It does not allow the inclusion of anything or something that might be possible thereafter. A decisive stroke that cannot be reversed or altered is final.
29. The word "interlocutory order" as defined in the Law Lexicon by P. Ramanatha Aiyar 1997 Edition, is an order made pending the cause and before a final hearing is concluded on merits. Such an order is made to secure some end and purpose necessary and essential to the progress of the litigation, and generally collateral to the issues formed by the pleadings and not connected with the final judgment. It has been termed as a purely interim or temporary nature of an order which does not decide the important rights or liabilities of the parties.
30. An interlocutory stage is an intermediate moment before the happening of the main event. It is something during the course of an action in the shape of a pronouncement which is not finally decisive of a dispute. It is provisional but not final touching some incident or emergent question.
31. Then comes the third category of the orders which fall in between. In our opinion it is this aspect which was left out in the decision of the Punjab & Haryana High Court in the case of Kartar Singh (supra) which deserves to be adverted to. The word intermediate order as defined in the law Lexicon (supra) is an order granted before entry of judgment, made between the commencement of an action and the final pronouncement.
32. The word 'Intermedium' means between or in the middle. It is something intermediate in position or an intervening action or performance before the final conclusion. That which is situated or occurring between two things is intermediate. It holds the middle place or degree between two extremes interposed in between.
33. There is no doubt about what are final orders and the controversy stands narrowed down to the difference between an interlocutory order and an intermediate/intermediary order.
34. The distinction between the two, interlocutory and intermediary would be that the former does not bring about any consequence of moment and is an aid in the performance of the final Act. It does not affect any existing rights finally or to the disadvantage of either extremes. An intermediate order can touch upon the rights of the parties or be an order of moment so as to affect any of the rival parties by its operation. Such an order affecting the rights of a person or tending to militate against either of the parties even at the subordinate stage can be termed as an intermediate or an intermediary order.
40. We have also come across an unreported judgment of the apex court in the case of Gyatri & others Vs. Ranjit Singh & others, Special Leave to Appeal (Crl) No. 3584 of 2006 decided on 13.2.2008 where the same view has been reiterated.
41. The difficulty again is that can such a list of illustrations be catalogued so as to confine the revisional jurisdiction in relation to such intermediate orders. Our obvious answer is in the light of what has been said in the case of Mohan Lal's case (supra) by the apex court that the determination of such an issue as to whether a revision would be maintainable or not would in turn depend upon the nature of the order and the circumstances in which it came to be passed. Thus it would depend on the facts and circumstances of each separate individual case where the revising authority will have to examine as to whether the Magistrate has proceeded to exercise his judicious discretion well within his jurisdiction or has travelled beyond the same, keeping in view the various shades of litigation in such matters where the apex court and this Court has held that an intermediate order, which is not necessarily an interlocutory order, could be subjected to revision. An order not conclusive of the main dispute between the parties, but conclusive of the subordinate matters with which it deals is not a purely interlocutory order even though it may not finally adjudicate the main dispute between the parties. In our opinion therefore a revision would not be barred under Sub Section (1) of Section 397 of the Code if the orders impugned before the revising authority fall within the tests indicated hereinabove."
23. In the light of the aforesaid propositions as canvassed in paragraph 41 of the aforesaid judgement, it is submitted by the learned counsel for the revisionist that once the application under Section 311 Cr.P.C. filed by the revisionist stands rejected then the revisionist has been rendered remedy-less to give her statement on the issue raised in the application under Section 311 Cr.P.C.
24. Reference was also made to the judgement of the Apex Court in the case of Hanuman Ram Vs. The State of Rajasthan and others reported in 2008 (15) SCC 652 wherein the Apex Court in paragraph 8 of its judgement has held that the jurisdiction conferred under Section 311 Cr.P.C. is purely discretionary wherein the High Court had entertained the criminal revision but the judgement of the High Court was set aside by the Apex Court not on the ground that the revision is not maintainable but the judgement itself is not sustainable in law in the facts and circumstances of the case. Paragraph 8 of the judgement relied upon by the learned counsel for the revisionist is reproduced herein below:
"8. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short Evidence Act) are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge."
25. Reference was also made to the judgement of the Apex Court in the case of Ratan Lal Vs. Prahlad Jat and others reported in (2017) 9SCC 340 wherein the Apex Court after considering the entire gamut of case law on the subject allowed the appeal by setting aside the judgement dated 22.05.2015 passed by the High Court in a revision petition.
26. The issue involved in the present criminal revision is whether the order rejecting an application filed by the victim before the trial court for recalling her as a witness under Section 311 Cr.P.C., would be revisable or not.
27. The Division Bench judgement of our court in the case of Asif Hussain (supra) does not lay down a general law that against an order passed on an application under Section 311 Cr.P.C., no reivision shall lie. What has been decided by the Division Bench is that the order of the Sessions Judge in exercise of powers under Section 311 Cr.P.C., refusing to summon witnesses at the behest of the accused is a purely interlocutory order from the point of view of the accused and no revision against the same is maintainable.
28. The judgement of the Apex Court rendered in the case of Sethuraman (supra) also relied upon by the learned counsel for the opposite party nos.2, 5 and 8 is also of no assistance. The aforesaid judgement with due respect is in the facts and circumstances of that case. It does not lay down any ratio decidendi which would constitute a binding precedent. The said judgement is in respect of a case arising out of a complaint under Section 138 of the N. I. Act. It was in the aforesaid peculiar circumstances of the case that the Apex Court opined that in view of the findings recorded by the trial court neither the documents sought to be summoned were necessary nor the complainant was required to be recalled for cross-examination. In the light of the findings recorded by the trial court, the Apex Court held that the two orders passed by the trial court rejecting the application under Section 91 Cr.P.C., for production of documents and the application under Section 311 Cr.P.C. for recall of the complainant for further cross-examination did not finally decide any issue. Therefore, in the considered opinion of the Court, the aforesaid judgement of the Apex Court is in the peculiar facts and circumstances of the aforesaid case and cannot be taken as a binding precedent.
29. The three Judges judgement of our Court in the case of Munna Singh @ Shivaji Singh (supra) has elaborately dealt with the concepts of a final order and an interlocutory order. After having considered the entire gamut of case law on the aforesaid subject the Full Bench categorically observed that in between an interlocutory order and a final order, there is a third category of order known as an intermediate order. Thereafter, the Full Bench relying upon the judgement of the Apex Court in the case of Gyatri and others Vs. Ranjit Singh and others, Special Leave to Appeal (Criminal) No.3584 of 2006 decided on 13.02.2008, opined that no list of illustrations can be cataloged so as confine the revisional jurisdiction in relation to such intermediate orders. The Full Bench further observed that the determination of such an issue as to whether a revision would be maintainable or not would in turn depend upon the nature of the order and the circumstances in which it came to be passed. Thus it would depend on the facts and circumstances of every separate individual case where the revising authority will have to examine as to whether the court below has proceeded to exercise his judicious discretion well within his jurisdiction or has travelled beyond the same, keeping in view the various shades of litigation.
30. Thus in view of the observation made by the Full Bench as noted herein above, there is no doubt that the order dated 10.04.2018 passed by the court below rejecting the application filed the revisionist no.1 Sheela Devi in terms of Section 311 Cr.P.C. (who is also the victim of an offence punishable under Section 376 (d) I.P.C.) for recalling her as a witness shall fall in the category of an intermediate order. Therefore, the criminal revision filed by the revisionists challenging the said order would be clearly maintainable. There is an another aspect of the matter. The revisionist no.1, Sheela Devi appeared before the court below as P.W.-2 and her evidence was closed on 02.02.2018. The application to recall her was filed on 02.02.2018 on the ground that her testimony as recorded is not the testimony uttered by her. Therefore, in case the victim is not recalled, the testimony given by her shall become final and this issue cannot be agitated subsequently.
31. Apart from the above, a Division Bench of this Court in the case of State of U.P. Vs. Ramesh Harijan reported in 2012 (5) SCC 777, has observed as follows in paragraphs 20, 30, 31:-
"20. It has now been emphatically declared by the apex Court that a Court is not helpless if it feels that witnesses are being won over, and the Court is not to act as a mere tape recorder, but to make an active effort to unravel the truth. In paragraph 58 in Zahira Habibullah H. Sheikh v. State of Gujarat: AIR 2004 SC 3114 the apex Court has clearly taken note of this problem and made the following observations:
"58. The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. (Emphasis added).
30. In this regard it would be appropriate here to allude to paragraph 7 of Bhagwan Singh v. State of M.P., MANU/SC/0218/2002:-
"7. We do not agree with the submission of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial Court even if it found that the view taken by the trial Court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate Court but a Judge-made guidelines for circumspection. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to re appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the trial Court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. In the instant case the trial Court acquitted the respondents by not relying upon the testimony of three eye-witnesses, namely, Kiran (P.W. 7), Mukesh (P.W. 12) and Jagdish (P.W. 22) on considerations which apparently appeared to be extraneous. Such findings of acquittal apparently are based upon erroneous views or the result of ignoring legal and admissible evidence with the result that the findings arrived at by the trial Court are held to be erroneous. The High Court has ascribed valid reasons for believing the statements of those witnesses by pointing out the illegalities committed by the trial Court in discarding their testimonies. The High Court has also rightly held that the trial Court completely ignored the basic principles of law in criminal jurisprudence which entitles the accused to claim the benefit of right of self-defence. Without there being any legal and admissible evidence but swayed by finding some injuries on the person of the accused, the trial Court wrongly held that the respondents were justified in causing the death of three persons in exercise of their right of self-defence. No fault, therefore, can be found in the judgment of the High Court on this ground." (Emphasis added)
31. In paragraphs 20, 21 and 22 of Sucha Singh v. State of Punjab, MANU/SC/0527/2003 it has been emphasized that undue stress cannot be given to the rule of benefit of doubt to the detriment of the legitimate need of society for social justice:
"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and others (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava MANU/SC/0161/1992. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties." (Per Viscount Simen in Stirland v. Director of Public Prosecutor (1944 AC 315) quoted in State of U.P. v. Anil Singh MANU/SC/0503/1988. Doubts would be called reasonable if they are free from a zest for (distract speculation. Law cannot afford any favourite other than truth.
21.In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra (MANU/SC/0167/1973 . . . . . .The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. . . . . . . . . . ."
. . . . . . . . .The evil of acquitting a guilty person light heartedly as a learned author Clanville Williams in 'proof of guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. . . . . . . . ."
. . . . . . . .a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. . . . . . . . ."
22.The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal MANU/SC/0506/1988. Similar view was also expressed in Gangadhar Behera and others v. State of Orissa MANU/SC/0875/2002" (Emphasis added).
32. In the case in hand, the Court finds that the accused opposite party no.s 2 to 8 have been specifically implicated in the F.I.R., the statement of the injured, namely, Indrajeet as well as the victim-Sheela Devi recorded under Section 161 Cr.P.C. Furthermore, the Court finds that the testimony of P.W.-2, Sheela Devi was recorded on 25.01.2018 and thereafter on 02.02.2018. The application to recall P.W.-2 as a witness in terms of Section 311 Cr.P.C., was filed on 02.02.2018 itself, i.e., without any delay. This Court is completely at a loss to understand as to how in the facts of the present case when one of the injured witness is the husband and the victim is the wife, could the wife make such statement in her testimony as recorded on 25.01.2018 and 02.02.2018.
33. For all the reasons stated herein above, the inescapable conclusion is that the present criminal revision is maintainable. Accordingly, the preliminary objection raised by Mr. S. K. Tiwari, the learned counsel representing the opposite party nos.2, 5 and 8 is hereby over-ruled.
34. Notice on behalf of the opposite party no.1 has been accepted by the learned A.G.A.
35. Issue notice to the opposite party nos. 3, 4, 7 and 8 calling upon them to file their respective counter affidavits within a period of one month. Learned A.G.A. May also file his counter affidavit within the aforesaid period.
36. Revisionist will have three week's time thereafter to file a rejoinder affidavit.
37. List this criminal revision after the expiry of the aforesaid period.
38. Until further orders of this Court, the further proceedings of Session Trial No. 659 of 2016, (State Vs. Babu Lal and others) under Section 376 (d) and 323 I.P.C., P.S.-Gonda, District-Aligarh pending in the Court of the Additional Sessions Judge, F.T.C. No.2, Aligarh, shall remain stayed.
Order Date :- 06.07.2018 YK