Delhi District Court
Sh. Satya Pal Gupta vs State on 9 December, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
CR No. 54/2021
CNR NO. DLCT01-003493-2021
SH. SATYA PAL GUPTA
R/O K-115, HAUZKHAS
NEW DELHI-110 095
...REVISIONIST
VERSUS
1. STATE
THROUGH ITS PUBLIC PROSECUTOR
TIS HAZARI DISTRICT COURT (CENTRAL)
DELHI-110 0054
...RESPONDENT NO. 1
2. M/S. VLS FINANCE LTD.
HAVING REGISTERED OFFICE AT:
2ND FLOOR, 13 SANT NAGAR
EAST OF KAILASH
NEW DELHI-110 065
...RESPONDENT NO. 2
Date of filing : 04.03.2021
First date before this court : 05.03.2021
Arguments concluded on : 26.11.2021
Date of Decision : 09.12.2021
CR No. 75/2021
CNR NO. DLCT01-004238-2021
SH. VINOD KUMAR BINDAL
S/O LATE SH. SUSHIL KUMAR BINDAL
R/O B-2, VIVEK VIHAR, PHASE -1
DELHI-110 095
...REVISIONIST
VERSUS
CR No. 54/2021 Satya Pal Gupta vs. State
CR no. 75/2021 Vinod Kumar Bindal vs. State
CR no. 76/2021 S.P. Gupta vs. State
CR no. 77/2021 Vipul Gupta vs. State
page 1 of 44 pages
1. STATE
THROUGH ITS PUBLIC PROSECUTOR
TIS HAZARI DISTRICT COURT
DELHI-110 054
...RESPONDENT NO. 1
2. M/S. VLS FINANCE LTD.
HAVING REGISTERED OFFICE AT:
2ND FLOOR, 13 SANT NAGAR
EAST OF KAILASH
NEW DELHI-110 065
...RESPONDENT NO. 2
Date of filing : 17.03.2021
First date before this court : 05.04.2021
Arguments concluded on : 26.11.2021
Date of Decision : 09.12.2021
CR No. 76/2021
CNR NO. DLCT01-004231-2021
SH. S.P. GUPTA
R/O K-115, HAUZKHAS
NEW DELHI-11 095
...REVISIONIST
VERSUS
1. STATE
THROUGH ITS PUBLIC PROSECUTOR
TIS HAZARI DISTRICT COURT (CENTRAL)
DELHI-110 0054
.....RESPONDENT NO. 1
2. M/S. VLS FINANCE LTD.
HAVING REGISTERED OFFICE AT:
2ND FLOOR, 13 SANT NAGAR
EAST OF KAILASH
NEW DELHI-110 065
.....RESPONDENTNO. 2
Date of filing : 17.03.2021
First date before this court : 05.04.2021
Arguments concluded on : 26.11.2021
Date of Decision : 09.12.2021
CR No. 54/2021 Satya Pal Gupta vs. State
CR no. 75/2021 Vinod Kumar Bindal vs. State
CR no. 76/2021 S.P. Gupta vs. State
CR no. 77/2021 Vipul Gupta vs. State
page 2 of 44 pages
CR No. 77/2021
CNR NO. DLCT01-004237-2021
SH. VIPUL GUPTA
S/O SH. S.P. GUPTA
R/O K-115, HAUZKHAS
NEW DELHI-110 095
...REVISIONIST
VERSUS
1. STATE
THROUGH ITS PUBLIC PROSECUTOR
TIS HAZARI DISTRICT COURT (CENTRAL)
DELHI-110 0054
.....RESPONDENT NO. 1
2. M/S. VLS FINANCE LTD.
HAVING REGISTERED OFFICE AT:
2ND FLOOR, 13 SANT NAGAR
EAST OF KAILASH
NEW DELHI-110 065
.....RESPONDENT NO. 2
Date of filing : 17.03.2021
First date before this court : 05.04.2021
Arguments concluded on : 26.11.2021
Date of Decision : 09.12.2021
APPEARANCE : Sh. Vijay Aggarwal, Sh. Pawan Narang, Sh. Tarun Chandiok, counsel for revisionists
Sh. K.D. Pachauri, learned substitute APP for State
Sh. P.S. Singhal, Sh. Jai Allagh, counsel for respondent no. 2
COMMON J U D G M E N T
1. These four revision petitions under Section 397 CrPC, preferred by the accused persons facing trials in the court of Additional Chief Metropolitan Magistrate, Central District, Delhi (ACMM) are taken up together for disposal on account of common legal and factual matrix. I heard counsel for all revisionists as well as CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 3 of 44 pages learned prosecutor assisted by the counsel for the complainant defacto. I also examined the synopsis with annexures, filed by the learned prosecutor assisted by learned counsel for the comp lainant defacto. However, I must add a caveat here itself that in the name of written submissions, synopsis and judicial precedents, voluminous material was placed on record, a substantial part whereof was completely irrelevant, so the same has been ignored in order to ensure brevity of this judgment.
BACKGROUND
2. A brief background of genesis of these revision petitions is as follows.
2.1 The revision petition titled "Satya Pal Gupta vs State"
was filed first in point of time and was retained on the board of t his court and registered as Cr.Revision Petition No. 54/2021. In the course of preliminary hearing on 05.03.2021, since the arguing counsel was not available, the learned counsel for revisionist took adjournment to address on maintainability of the said revision petition in the light of Section 397(2) CrPC. Accordingly, Cr. Rev.No. 54/2021 was adjourned to 08.04.2021 for preliminary hearing.
2.2 Thereafter, the remaining three revision petitions titled above were filed and there being no disclosure about pendency of Cr.Revision No. 54/2021 before this court, those remaining three revision petitions were randomly in routine assigned to the court of CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 4 of 44 pages Shri Sanjay Sharma-II, ASJ-03, Central, Tis Hazari Court, Delhi, who took up the matters for preliminary hearing on 18.03.2021 and passed an order that the learned trial magistrate may hear arguments on charge as well as on the application under Section 219 read with Section 220 CrPC, but final order be passed by the trial court after decision of those three revision petitions.
2.3 On the next date 05.04.2021 in the said three revision petitions, counsel for the complainant defacto appeared and apprised the court of learned ASJ-03 about order dated 05.03.2021 of this court in Cr.Rev. No. 54/2021. Therefore, the learned ASJ-03 directed the said three revision petitions to be placed before this court.
2.4 On 05.04.2021 itself, when files of the said three revision petitions were placed before this court, the same were retained on the board of this court, and after addressing partly, counsel for revisionists requested for adjournment, so that the said three revision petitions could be taken up on 08.04.2021 when Cr.Rev.Petition No. 54/2021 already pending before this court was listed, and thus all four revision petitions could be heard together. After recording detailed submissions of learned counsel for complainant defacto, alleging that for past more than a decade the revisionists were somehow trying to stall the framing of charge, matter was posted for arguments on maintainability of all the four revision petitions on 08.04.2021 and direction was issued to the revisionists to file amended memo of parties thereby impleading the complainant defacto as respondent no.2.
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 5 of 44 pages 2.5 Although, there was not even a whisper of objection to the impleadment of complainant defacto as respondent no. 2 in these proceedings and in compliance the amended memo of parties also was filed, but revisionists opted to challenge the order dated 05.04.2021 of this court before the Hon'ble Delhi High Court to the extent of direction to implead the complainant defacto as respondent no. 2. Vide order dated 06.08.2021 in Crl.MC 1163/2021 and Crl.MC 1186/2021 the Hon'ble High Court set aside order dated 05.04.2021 of this court, though granted liberty to the counsel for complainant defacto to assist the learned prosecutor.
ORDERS ASSAILED BY REVISIONISTS
3. The revision petition titled: "Satya Pal Gup ta vs State"
Cr.Rev.No. 54/2021 assails order dated 22.02.2021 of learned ACMM, Central District in trial proceedings arising out of FIR No. 315/05 of PS Naraina. The revision petition titled: "Vinod Kumar Bindal vs State" Cr.Rev. No. 75/2021 assails orders dated 01.02.2020, 22.02.2021 and 06.03.2021 of learned ACMM, Central District in trial proceedings arising out of FIR No. 99/2002 of PS Connaught Place. The revision petition titled: "S.P. Gupta vs State" Cr.Rev. No. 76/2021 assails order dated 06.03.2021 of learned ACMM, Central District in trial proceedings arising out of FIR No. 90/2000 of PS Connaught Place. The revision petition titled: "Vipul Gupta vs State" Cr. No. 77/2021 assails orders dated 01.02.2020, 22.02.2021 and 06.03.2021 of learned ACMM, Central District in trial proceedings arising out of FIR No. 90/2000 of PS Connaught Place.
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 6 of 44 pages 3.1 Vide orders dated 01.02.2020 and 22.02.2021, assailed in Cr.Rev.No.54/2021, Cr.Rev.No.75/2021 and Cr.Rev.No.77/2021, the learned ACMM rejected the request of learned counsel for revisionists that their pending applications under Sections 219 & 220 CrPC for joinder of trials should be decided first and only thereafter learned counsel would address arguments on framing of charges. In the said orders, the learned ACMM observed that in view of orders of the superior courts including the orders of the Hon'ble Delhi High Court passed in these cases and also in other cases, as well as orders of his predecessor, the revisionists could not be allowed to choose to address arguments in piecemeal by first addressing on joinder of trial/charge and thereafter addressing arguments on the point of charge, since the superior courts and his predecessor had already held that on arguments on both issues i.e. joinder of charge as well as framing of charge would be addressed and decided simultaneously. After rejecting the submission of learned counsel for revisionists, learned ACMM called upon the counsel for revisionists to address arguments on both joinder of charges as well as framing of charges, for which counsel for revisionists sought and were allowed adjournment as last opportunity, recording that for past 15-20 years, the matter was pending and even charge had not been framed.
3.2 Vide orders dated 06.03.2021, assailed in Cr.Rev.No.75/2021, Cr.Rev.No.76/2021 and Cr.Rev.No.77/2021, the learned ACMM recorded that arguments on point of charge were addressed and concluded by the counsel for five accused p ersons but CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 7 of 44 pages the sixth accused Shri Pradeep Dhingra sought adjournment on the ground that although his counsel was Shri Gurpreet Singh advocate, but he intended to engage Shri Tarun Chandiok, advocate for addressing arguments and the latter was not available. The said adjournment request of accused Shri Pradeep Dhingra was rejected by the learned ACMM on the ground that adjournment could not be granted due to non availability of a counsel, who had not even filed his vakalatnama. Shri Gurpreet Singh, counsel for two more accused persons namely Shri Vinod Kumar Bindal and Shri S.K. Bindal sought adjournment to address arguments on the ground that it was already 04:00 pm, but after taking note of the previous record, especially that the trial is pending for more than 13 years and even arguments on charge are pending for past several years, adjournment request of Shri Gurpreet Singh Advocate was declined, granting liberty to all the counsel to file written submissions within 10 days and the matter was posted for arguments on application under Sections 219 & 220 CrPC on 20.03.2021.
3.3 Further, vide order dated 06.03.2021, assailed in Cr.Rev.No.76/2021 and Cr.Rev.No.77/2021, the learned ACMM also dismissed the applications of revisionists under Section 91 CrPC read with Section 207 CrPC mainly on the ground of unexplained delay of about 18 years and on the ground that the documents sought to be summoned did not find mention in any of the statements under Section 161 CrPC or any other document forming part of the chargesheet. The learned ACMM also rejected the objection of the revisionists to the effect that the counsel for the comp lainant defacto CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 8 of 44 pages have no locus standi to prosecute the revisionists and it is only the prosecutor who can open the arguments on charge. This contention of the revisionists was rejected by the learned ACMM referring to order dated 26.03.2009 of his predecessor. The learned ACMM also dismissed an application of the revisionist under Section 173(8) CrPC mainly on the ground that no investigation is pending. After hearing part arguments on point of charge as well as application under Sections 219 & 220 CrPC, the same were adjourned for fur ther arguments alongwith the other cases.
SUBMISSIONS OF PARTIES
4. Against the above backdrop of the impugned orders, submissions of all learned counsel for parties revolved around the questions as to whether the abovenoted impugned orders are interlocutory orders, thereby not amenable to scrutiny under revisional jurisdiction of this court on account of bar under Section 397(2) CrPC and if the same are intermediate orders, whether the same suffer any illegality, incorrectness or impropriety. After conclusion of the extensively addressed arguments, in Cr.Rev.No.77/2021, an application for permission to raise additional grounds was filed, which was allowed and learned counsel for revisionist advanced additional arguments also. Thereafter, learned Additional Public Prosecutor, assisted by the counsel for complainant defacto responded, and ultimately with rebuttal arguments on behalf of revisionists, the hearings were finally concluded.
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 9 of 44 pages ARGUMENTS ON BEHALF OF REVISIONISTS
5. Agruments in these revision petitions were advanced by three arguing counsel in a consolidated manner. Briefly, the arguments on behalf of the revisionists were as follows.
5.1 According to learned counsel for revisionists the orders impugned in these revision petitions are intermediate orders and not interlocutory orders, therefore bar stipulated under Sec.397(2) CrPC does not come into play, and consequently, these revision petitions are maintainable.
5.2 It was argued on behalf of revisionists that the test to decide as to whether an order is an intermediate order or an interlocutory order, is not the culmination of main proceedings, but the culmination of any right of a party. It was further argued that since all the FIRs involved in the present revision proceedings pertain to a single transaction,the trial court must in the first instance decide on the issue of joinder of charges and trial under Sections 219 & 220 CrPC and only thereafter hear the parties on framing of charges, because unless joinder is permitted, documents favorable to an accused on the file of one chargesheet cannot read in the chargesheet of the other case where the accused faces framing of charges. It was contended that various documents filed with the chargesheet of FIR no. 90/2000 would be helpful to the revisionist in the chargesheet of FIR No. 99/2002, therefore, the trial court should first decide the ap plication under Sections 219 & 220 CrPC followed by consideration of charge. CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 10 of 44 pages 5.3 It was further argued on behalf of revisionists that the impugned orders are in derogation of orders dated 06.10.2009 and 04.03.2010 of the Hon'ble High Court, according to which the application under Sections 219 & 220 CrPC should be decided "at appropriate stage" and not simultaneous with framing of charges.
5.4 It was also argued on behalf of revisionists that the impugned orders are non-speaking orders, so thereby rights of the revisionists to a fair trial have been infringed. It was argued that any order which substantially affects the rights of parties cannot be held to be interlocutory order; and that it is a wrong imp ression to say that interlocutory order is that order which does not culminate main proceedings. Since decision of the trial court to hear arguments on application under Sections 219 & 220 CrPC simultaneous with arguments on charge affects rights of the revisionists, the orders impugned in these revision petitions are intermediate orders and hence amenable to revisional jurisdiction of this court.
5.5 Similarly, since by dismissal of application under Section 91 CrPC, rights of the accused are affected, such an order cannot be held to be interlocutory order according to the revisionists. It was argued that if the documents withheld by the investigating officer are brought on record, the revisionists would be entitled to discharge, therefore, dismissal of application under Section 91 CrPC also is liable to be examined through revision proceedings.
5.6 It was argued on behalf of revisionists that the imp ugned CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 11 of 44 pages order dated 06.03.2021 is bad in law, because at 04:00 pm, counsel for revisionists could not be compelled by the trial court to address arguments since court sitting hours had come to an end. It was argued that since right of the accused to be heard was violated by denying adjournment, order dated 06.03.2021 was completely unsustainable, therefore this court need not even examine as to whether it was interlocutory order or an intermediate order.
5.7 In support of their arguments, learned counsel for revisionists placed reliance on the judgments in the cases of Amar Nath vs State of Haryana, 1977 CrLJ 1891 SC; Madhu Limaye vs The State of Maharashtra, 1978 SCR (1) 749; Girish Kumar Suneja vs Central Bureau of Investigation, (2017) 14 SCC 809; Asian Resurfacing of Road Agency Pvt.Ltd. vs Central Bureau of Investigation, Crl.Appeal 1375-1376 of 2013 decided by the Hon'ble Supreme Court on 28.03.2018; and Vinubhai Haribhai vs State of Gujarat, (2019) 17 SCC 1.
5.8 In nutshell, the arguments advanced on behalf of all the revisionists are that dismissal of an application under Section 91 CrPC is not interlocutory order; that denial of adjournment at 04:00 p m is not an interlocutory order; and that decision of the trial court to hear the applications under Sections 219 & 220 CrPC simultaneou s with arguments on charge also is not interlocutory order because it affects rights of the accused to fair trial.
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 12 of 44 pages ARGUMENTS ON BEHALF OF RESPONDENT STATE
6. Learned prosecutor, assisted by counsel for comp lainant defacto responded to the above arguments as follows.
6.1 It was submitted by learned prosecutor that the impugned orders clearly show that more than sufficient time had been granted to the defence counsel and even opportunity to file written submissions had been allowed, but the revisionists opted to ignore all those opportunities and preferred to file these revision p etitions; and that there is absolutely no material to infer that the accused persons are being deprived of right to be heard. It was further agued by learned prosecutor that none of the orders impugned in the p resent revision petitions culminates even the concerned stage of the proceedings, what to say of culminating the main proceedings and therefore, none of the impugned orders is revisable. Learned prosecutor took me through various orders on record to show that the revisionists have been trying their best to somehow delay the proceedings before the trial court and were not even interested in exercising their right to be heard.
6.2 With the help of judicial precedents, the learned prosecutor argued that since accused has no right to file any document at the stage of consideration of charge, claim of the revisionists that they had a right to first get the cases consolidated is not supported by any law. It was further argued by the learned p rosecutor that these revision petitions have been filed by single accused persons in each of CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 13 of 44 pages the cases pending trial and the revisionists do not represent the remaining accused persons, so this court without hearing the remaining accused persons ought not to direct that arguments under Sections 219 & 220 CrPC be heard prior to arguments on charge.
6.3 Learned prosecutor also contended that an order dismissing application under Section 91 CrPC is an interlocutory order, so not amenable to revisional scrutiny, and in any case such an application could not be even filed prior to the stage of defence evidence.
6.4 Learned prosecutor placed reliance on the judgments in cases of T.K.Lathika vs Karsandas Jamnadas, MANU/SC/0535/1999; SEBI vs Mangalore Stock Exchange, MANU/SC/2862/2005; Sethuraman vs Rajamanickam, (2009) 5 SCC 153; Shyamlal Rajput vs Vishesh Police Sthapna, 2019 SCC Online MP 977; Hemraj Nama vs Goyal General Store, Crl.Rev.283/2013 of Rajasthan High Court; State of Orissa vs Debendranath Padhi, (2005) 1 SCC 568; Gulshan Kumar Ahuja vs Veena Sharma, MANU/DE/1079/2003; Neelam Mahajan vs State, MANU/DE/ 0871/2018; Girish Kumar Suneja vs CBI, (2017) 14 SCC 809; and Jaya Suresh Gangar vs the State of Maharashtra, MANU/MH/0961/2018.
ADDITIONAL ARGUMENTS
7. As mentioned above, after conclusion of final arguments CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 14 of 44 pages in all these revision petitions, learned counsel for revisionist in Cr.Rev.No.77/2021 sought and was allowed to address additional arguments.
7.1 During additional arguments, learned counsel for revisionist Vipul Gupta argued that the court of ACMM is not empowered to deal with the chargesheets filed by the Economic Offences Wing (EOW) of Delhi Police and to that extent, the impugned orders are liable to be set aside. It was argued that under Section 17 CrPC, the ACMM can deal with only those cases which are directed by the Hon'ble High Court, and the Chief Metropolitan Magistrate (CMM) cannot decide as to which matters shall be dealt with by the ACMM. It was argued that since there is no order of the Hon'ble Delhi High Court authorizing the ACMM to hear the cases filed by EOW, the entire proceedings pending before the learned trial court are without jurisdiction, so this court ought to intervene under Section 397 CrPC.
7.2. In reply to the additional arguments, learned p rosecutor placed reliance on the provisions under Section 17(2), Section 26 and Section 29 CrPC to show that according to the scheme of the Code, ACMM holds ample powers as those of CMM. It was argued by learned prosecutor that for dealing with offences under the Indian Penal Code, no specific order of the High Court is required by the ACMM. Learned prosecutor took me through various administrative orders of the Hon'ble High Court to show that cases of EOW are being regularly dealt with by the courts of ACMM for past long time. CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 15 of 44 pages Learned prosecutor also submitted that it is not in dispute that an ACMM is empowered to deal with cases filed by the Crime Branch of Delhi Police, and that being so, EOW being a part of the Crime Branch since the year 2008, there is no bar on the learned trial court dealing with the cases pending before it. It was also argued by the learned prosecutor that even the argument of jurisdiction dispute would fall within the embargo created by Section 397(2) CrPC.
REBUTTAL ARGUMENTS
8. In the name of rebuttal arguments, learned arguing counsel on behalf of revisionists mainly reiterated their main arguments. However, it was further argued that the expression "under this Code or under any law" in Section 17 (2) CrPC has to be read conjunctively while looking into the issue of jurisdiction of CMMs and ACMMs; that there is no specific order from the Delhi High Court empowering the ACMMs to try cases filed by EOW; that the transfer s/postings circulars relied upon by the prosecution side are not relevant for present purposes. It was also argued that since there were no directions for time bound disposal, declining the adjournment request at 04:00 pm was not appropriate and it assailed right of the accused to fair trial. It was further argued that an order under Section 173 (8) CrPC cannot stand alone de hors Section 156 (3) CrPC and the latter being amenable to revisional jurisdiction, the former cannot be held to be barred by Section 397 (2) CrPC.
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 16 of 44 pages RELEVANT ORDERS OF HON'BLE DELHI HIGH COURT
9. As reflected from record, the revisionists adopted a multipronged approach by challenging various orders at various fora. It would be significant to take note of certain relevant orders of the Hon'ble Delhi High Court passed in various proceedings initiated by the revisionists, relevant for present purposes.
9.1 The revisionist Sh. Vipul Gupta filed Crl MC no. 1859/2021 assailing order dated 20.03.2021 of the ACMM, and the Hon'ble Single Judge of the Delhi High Court vide order dated 02.09.2021 disposed of the petition with the directions to the learned ACMM to grant hearing to the counsel for revisionist on charge for not more than two hours on 06.09.2021 or any other convenient da te prior to 09.09.2021 and thereafter half an hour time be given for response.
9.2 The revisionist Sh. Vipul Gupta also filed Crl MC no. 1623/2021, but withdrew the same on 02.09.2021 before the Hon'ble Single Judge of the Delhi High Court.
9.3 Sh. Sanjeev Kumar Bindal, one of the co-accused of the revisionists assailed order dated 06.03.2021 of the ACMM by way of Crl MC no. 2099/2021 and the petition was disposed of by the Hon'ble Single Judge of the Delhi High Court vide order dated 26.10.2021, thereby directing the trial court to allow the petitioner to argue on CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 17 of 44 pages charge for not more than three hours on 02.11.2021 or any convenient date prior to 17.11.2021 and after his arguments, half an hour be given for response and endeavor be made to get the arguments concluded prior to 17.11.2021.
9.4 Sh. Kaveen Gupta, one of the co-accused of the revisionists filed Crl MC no. 2101/2021, assailing the order dated 20.03.2021 of the ACMM and the petition was disposed of by the Hon'ble Single Judge of the Delhi High Court, granting the petitioner not more than two hours to argue on charge on 01.11.2021 or any convenient date prior to 17.11.2021 and thereafter half an hour time be given for response and endeavor be made to get the arguments concluded prior to 17.11.2021.
9.5 Sh. Pradeep Kumar Dhingra, co-accused of the revisionists assailed order dated 06.03.2021 of the ACMM by way of Crl MC no. 2621/2021 and the petition was disposed of by the Hon'ble Single Judge of the Delhi High Court thereby directing that the trial court shall make all endeavors to get the arguments on charge concluded by 17.11.2021 and also clarified that if any other accused person in other connected FIRs want to address arguments, they may address on or before 17.11.2021.
9.6 The revisionists Sh. Vipul Gupta and Sh. S.P. Gupta assailed order dated 05.04.2021 of this court by way of Crl MC no. 1163/2021 and Crl MC no. 1186/2021 and the petitions were disposed of by the Hon'ble Single Judge of the Delhi High Court vide order CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 18 of 44 pages dated 06.08.2021, setting aside order dated 05.04.2021 of this court (whereby the revisionists had been directed to implead the complainant defacto as private respondent) and clarifying that order of the Hon'ble High Court shall not disentitle the complainant defacto from appearing before this court to assist the learned prosecutor and/or to plead their case through the learned prosecutor.
9.7 The revisionist Sh. S.P. Gupta filed yet another p etition, bearing number Crl.MC no. 2901/2021 to assail orders dated 09.09.2021 of the learned ACMM, which petition was dismissed by the Hon'ble Single Judge of the Delhi High Court observing that the conduct of the petitioner concealing the facts regarding filing applications seeking similar reliefs before the trial court is nothing but a ploy to delay the trial.
LEGAL POSITION
10. For the sake of ready reference, the provision under Section 397 CrPC is quoted as follows :
"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 CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 19 of 44 pages 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."
11. Noticeably, Section 397(1) CrPC confers on the High Court as well as the Court of Sessions very wide powers to examine the legality, correctness and propriety of any order passed by any "inferior criminal court". Sub-section (2) of Section 397 CrPC operates as a check on those vast revisional powers and the purpose of the said check is to curb delays in decisions of criminal cases, in order to ensure fair and expeditious trial. The expression "interlocutory order"
used in Section397(2) CrPC has been subject of detailed analysis in various judicial precedents and is vital to understand t he nature and extent of curtailment of revisional jurisdiction.
12. Basically, a judicial order passed by a criminal court can be either Final Order or Intermediate Order or Interlocutory Order. So far as final order is concerned, there can be no difficulty in the sense that an order of discharge or acquittal or conviction is a final order. The issue lies while distinguishing between an interlocutory order and an intermediate order, which distinction is necessary to understand, in order to analyze the statutory bar created by Section 397(2) CrPC, aimed to curtail the revisional powers of the High Court and the Court of Sessions.
13A. In the case of Amar Nath & Others vs State Of Haryana & Others, 1977 CrLJ 1891, a Bench of two Hon'ble Judges of the CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 20 of 44 pages Supreme Court dealt with the provisions under Sections 397(2) and 482 CrPC. In the said case, police filed chargesheet against the accused persons except the appellant; qua the appellant, p olice filed Final Report to the effect that there was no evidence against the appellant and consequently the appellant was released. The said order regarding release of the appellant was challenged by the comp lainant before the Court of Sessions by way of Criminal Revision, which was dismissed. So, the complainant filed a regular complaint case against all accused person including the appellant, which complaint case was dismissed by the Magistrate holding after pre-summoning evidence, that no case was made out. Against the said order of dismissal of complaint case, the complainant filed a Criminal Revision before the Court of Sessions, which accepted the revision and remanded the matter to the Magistrate with directions to hold further inquiry. But the Magistrate, instead of holding further inquiry, straightaway directed issuance of summons to the appellant. So, the appellant filed a petition under Section 482 read with Section 397 CrPC before the Hon'ble High Court. The Hon'ble High Court dismissed the petition, holding that the impugned order of summoning the accused p ersons being an interlocutory order, revision against the said order was barred vide Section 397(2) CrPC and consequently, even inherent powers could not be invoked. Against the said order of the Hon'ble High Court, the appellant preferred an appeal before the Hon'ble Supreme Court.
13B. The Hon'ble Supreme Court analyzed the provision under Section 397(2) CrPC and held that an interlocutory order is that order which does not decide rights or liabilities of the parties; that an CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 21 of 44 pages order which affects rights of the parties cannot be called an interlocutory order; and that orders which are p rocedural steps, like summoning of witnesses, adjournments, bail and calling for report etc which are steps in the aid of pending proceedings are interlocutory orders; and that subsection (2) was inserted in Section 397 CrPC in order to protect right of the accused so that trials do not get delayed. So, the Hon'ble Supreme Court held that the trial court order, impugned in that case, was not an interlocutory order because after filing of the Final Report followed by dismissal of the complaint case, the appellant had secured a right not to be put on trial, and since the impugned order compelled the appellant to face trial, it was not an interlocutory order, therefore, the same was amenable to revisional jurisdiction of the High Court.
14A. The concept of "intermediate order" was elucidated in the case of Madhu Limaye vs State of Maharashtra, (1977) 4 SCC 551 by a Bench of three Hon'ble Judges of the Supreme Court of India while distinguishing a final order from an interlocutory order. The Hon'ble Supreme Court of India laid down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. An intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. 14B. In the said case, the State Government filed a criminal complaint against the appellant for offence under Section 500 IPC, alleging that the appellant had defamed the Chief Minister. On being CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 22 of 44 pages summoned by the trial court of Additional Sessions Judge, the appellant filed an application seeking dismissal of the comp laint on the ground of non application of mind while granting sanction and also on the ground that the act for which the Chief Minister was allegedly defamed had not been performed in an official capacity. The trial court of learned Additional Sessions Judge dismissed the application and framed charge against the appellant. The Criminal Revision filed by the appellant, assailing the framing of charge, was dismissed by the Hon'ble High Court in the light of Section 397(2) CrPC, so the appellant came to the Hon'ble Supreme Court. 14C. The Hon'ble Supreme Court after analyzing various judicial precedents held that the view expressed in the case of Amar Nath (supra) needs to be modulated and modified on one part and needs to be reaffirmed on the other part. The view taken in the case of Amar Nath (supra) that where bar of Section 397(2) CrPC applies, inherent powers under Section 482 CrPC cannot be invoked by the High Court was modulated by the Hon'ble Supreme Court holding that bar of Section 397(2) CrPC shall not obstruct the inherent powers of the High Court if the High Court finds it necessary to intervene and prevent abuse of process of court. The other point of the case of Amar Nath (supra) was reaffirmed that the interlocutory order is not converse of the final order and that order on charge is not an interlocutory order.
14D. The Hon'ble Supreme Court held that the feasible test is whether upholding the objections raised by a party would result in culminating the proceedings, and if so, any order passed on such objections would not be an interlocutory order as envisaged in Section CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 23 of 44 pages 397(2) CrPC. The Hon'ble Supreme Court referred to another earlier decision of S. Kuppuswami Rao vs The King, (1947) Federal Court Reports 180, in which it was held that if the order whichever way it is given will finally dispose of matter in dispute, it is a final order, but if the order given in one way will finally dispose of matter in dispute and if given in other way, action will go on, it is interlocutory order. Rejecting that view, the Hon'ble Supreme Court held that there may be an order passed during the proceedings which may not be final in the sense noticed in Kuppuswami's case (supra) but yet it may not be an interlocutory order, as some orders may fall in between the two. The Hon'ble Supreme Court further held that it is neither advisable or possible to draw a catalogue of orders to demonstrate which kind of orders would be purely interlocutory and which kind of orders would be final and then to p repare an exhaustive list of those orders which will fall in between the two. Bar of Section 397(2) CrPC shall not operate against the orders which fall in between the final order and the interlocutory order, according to the Hon'ble Supreme Court. Referring to precedent of Mohan Lal Magan Lal Thacker vs State Of Gujarat, (1968) 2 SCR 685, the Hon'ble Supreme Court held that one of the tests to ascertain whether the impugned order is a final order, is "if the order in question is reversed, would the action have to go on?"
and held that applying this test, if the appellant succeeds in his p lea and order of the Court of Sessions is reversed, the criminal proceedings as initiated against him cannot go on, though if he loses on merits, the proceedings will go on. Applying the test of Kuppuswami's case (supra) such an order will not be a final order but applying the test of Mohan Lal's case (supra), it would be a final CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 24 of 44 pages order. The Hon'ble Supreme Court approved of the latter p recedent and held that the order impugned in that case did not fall under the bar stipulated by Section 397(2) CrPC.
15A. In the case of K.K. Patel & Anr vs State Of Gujarat, (2000) 6 SCC 195, another Bench of two Hon'ble Judges of the Supreme Court held that in deciding whether an order is interlocutory or not, the sole test is not whether such order was p assed during the interim stage, but the feasible test is as to whether by up holding the objections raised by a party, it would result in culminating the proceedings and if so, such order would not be merely interlocutory order as envisaged by Section 397(2) CrPC and consequently such order would be amenable to the revisional jurisdiction.
15B. In the said case, a complaint of kidnapping was lodged with the Magistrate, who directed investigation under Section 156(3) CrPC and after investigation, the police reported that the comp laint could not be substantiated due to want of p roof, but the Magistrate held that the complaint was false. Thereafter, the concerned DSP filed a complaint case, alleging those same offences against two police officials, in which the Magistrate recorded presummoning evidence and summoned the accused persons after taking cognizance. The accused persons filed an application for discharge on the ground that no sanction had been obtained. The Magistrate dismissed the discharge application with a rider that the sanction issue would be considered after recording evidence of both sides. The said order was challenged by the accused before the Court of Sessions by way of Criminal Revision, which succeeded and the summoning order was CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 25 of 44 pages quashed. The concerned DSP filed a Criminal Revision petition before the Hon'ble High Court, which petition succeeded and the order of the Court of Sessions was set aside holding that the dismissal of discharge application in this case was an interlocutory order, because the Magistrate had not conclusively decided the sanction issue, and consequently the Court of Sessions could not have entertained the Criminal Revision. The matter came to the Hon'ble Supreme Court, where order passed by the Hon'ble High Court was set aside, holding that the impugned order was not an interlocutory order, so the same was amenable to revisional jurisdiction of the Court of Sessions in view of the tests laid down in the cases of Amar Nath (supra) and Madhu Limaye (supra), which tests are to the effect whether upholding the objections raised by a party would culminate the proceedings.
15C. The Hon'ble Supreme Court elaborated 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, Madhu Limaye v. State of Maharashtra, V. C. Shukla v. State through CBI and Rajendra Kumar Sitaram Pande v. Uttam). 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 objections 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 "
(emphasis supplied) CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 26 of 44 pages 16A. In the case of Girish Kumar Suneja vs CBI, (2017) 14 SCC 809, a Bench of three Hon'ble Judges of the Supreme Court had an occasion to examine the provisions under Section 397(2) CrPC. 16B. In a previous decision of Coal Block Allocation cases, the Hon'ble Supreme Court had directed inter alia that all Coal Block Allocation cases pending in different courts of Delhi shall stand transferred to the Special Judge and any prayer for stay of trial of those cases can be made only before the Supreme Court and no other court shall entertain the same.
16C. The learned Special Judge passed an order framing charges against the appellant, so he filed a Criminal Miscellaneous Case which was dismissed by the Hon'ble Delhi High Court in view of the said order of the Hon'ble Supreme Court. Against that order, the appellant approached the Hon'ble Supreme Court and pleaded that the said order of the Supreme Court deserved to be recalled because the appellant had been denied access to justice in the form of challenging under Section 397 CrPC the order framing charge. The Hon'ble Supreme Court held that the litigant does not have a right to seek setting aside of an order by invoking revisional jurisdiction of the court, as the revisional jurisdiction is a discretionary jurisdiction.
16D. The Hon'ble Supreme Court held thus :
"16. While the text of sub-section (1) of Section 397 of the Cr.P.C. appears to confer very wide p owers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub-section (2) thereof. There is a complete prohibition in a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction? CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 27 of 44 pages
17. There are three categories of orders that a court can pass - final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order. ......
......
20. As noted in Amar Nath the purpose of introducing Section 397(2) of the CrPC was to curb delays in the decision of criminal cases and thereby to benefit the accused by giving him or her a fair and exp editious trial. Unfortunately, this legislative intendment is sought to be turned topsy turvy by the appellants.
21. The concept of an intermediate order was further elucidated in Madhu Limaye v State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind - an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 28 of 44 pages
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel vs. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process..................
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a p etition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of paragraph 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising its extraordinary discretionary power available under Section 397 of the CrPC.
28. However, this does not mean that the appellants have no remedy available to them - paragraph 10 of the order does not prohibit the appellants from approaching this Court under Article 136 of the Constitution. Therefore all that has happened is that the forum for ventilating the grievance of the appellants has shifted from the High Court to this Court."(emphasis supplied) 17A. In the case of Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. vs Central Bureau of Investigation, Criminal Appeal No. 1375-1376 of 2013, decided on 28.03.2018, another Bench of three CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 29 of 44 pages Hon'ble Judges of the Supreme Court dealt the provision under Section 397 CrPC.
17B. In the said case, after investigation, chargesheet was filed for certain offences under IPC as well as under the Prevention of Corruption Act at the instance of Municipal Corporation of Delhi against the appellant and some MCD officials alleging wrongful loss caused to the MCD by use of fake invoices of oil companies qua transportation of bitumen for use in "Dense Carpeting Works" of roads in Delhi during the year 1997 and 1998. The trial court framed charges, against which the accused persons filed Criminal Revision petition before the Hon'ble High Court. The said revision petition was converted into a Writ Petition and was referred to the Hon'ble Division Bench for deciding as to whether an order on charge is an interlocutory order which can be assailed under Article 226/227 of Constitution of India. While framing the said question, the Hon'ble Single Judge of the Delhi High Court observed that on the issue in question there were contrary views expressed by the two Hon'ble Single Judges of the Court. The first view taken in the case of Dharambir Khatter vs CBI, 159 (2009) DLT 636 was that the order framing charge is an interlocutory order, so the same is not amenable to revisional jurisdiction vide Section 19(3) of the Prevention of Corruption Act. The second view was taken in the case of R.C. Sabbarwal vs CBI, 166(2010) DLT 362 was that an order of discharge could be challenged in the revisional jurisdiction. The Hon'ble Division Bench of the Delhi High Court held that the order framing charge is an interlocutory order, so vide Section 19(3) of the Prevention of Corruption Act and Section 397(2) CrPC, such order CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 30 of 44 pages cannot be assailed in revisional jurisdiction; and that Section 19 of the Prevention of Corruption Act does not affect powers of the High Court under Section 482 CrPC or Article 226/227 of the Constitution of India, so an order framing charge is assailable under Article 226/227 of the Constitution of India. That order of the Hon'ble Division Bench of the Delhi High Court was challenged before the Hon'ble Supreme Court, which held that the law laid down in the case of Madhu Limaye (supra) still holds the field and order framing charge is not an interlocutory order.
17C. The Hon'ble Supreme Court held thus:
"19. Referring to the judgment in Mohanlal Maganlal Thacker v. State of Gujarat, AIR 1968 SC 733, it was held that the test adopted therein that if reversal of impugned order results in conclusion of proceedings, such order may not be interlocutory but final order. It was observed :
"15. .......In the majority decision four tests were culled out from some English decisions. They are found enumerated at p. 688. One of the tests is "if the order in question is reversed would the action have to go on?"
Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceedings will go on. Applying the test of Kuppuswami case such an order will not be a final order. But applying the fourth test noted at p . 688 in Mohan Lal case it would be a final order."
17D. Hon'ble Mr. Justice R.F. Nariman, wrote a separate but concurring judgment and after traversing through various judicial precents observed thus :
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 31 of 44 pages "13. The second ground on which this case (Madhu Limaye case) was decided was that an order framing a charge was not a purely interlocutory order so as to attract the bar of Section 392(2), but would be an "intermediate" class of order, between a final and a purely interlocutory order, on the application of a test laid down by English decisions and followed by our Courts, namely, that if the order in question is reversed, would the action then go on or be terminated. Applying this test, it was held that in an order rejecting the framing of a charge, the action would not go on and would be terminated and for this reason also would not be covered by Section 397 (2).
14. This judgment was affirmed by a 4-Judge Bench in V.C. Shukla vs. State through CBI (1980) Supp. SCC 92 at 128-129, where it was held that under Section 11 of the Special Courts Act, 1979, the scheme being different from the Code of Criminal Procedure, and the Section opening with the words "notwithstanding anything in "the Code", the "intermediate" type of order would not obtain, and an order framing a charge would, therefore, not be liable to be appealed against, being purely interlocutory in nature.
While holding this, this Court was at pains to point out:
"On a true construction of Section 11(1) of the Act and taking into consideration the natural meaning of the expression 'interlocutory order', there can be no doubt that the order framing charges against the appellant under the Act was merely an interlocutory order which neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami's case the order impugned was undoubtedly an interlocutory order. CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 32 of 44 pages Taking into consideration, therefore, the natural meaning of interlocutory order and applying the non obstante clause, the position is that the p rovisions of the Code of Criminal Procedure are expressly excluded by the non obstante clause and therefore S. 397 (2) of the Code cannot be called into aid in order to hold that the order impugned is not an interlocutory order. As the decisions of this Court in the cases ofMadhu Limaye v. State of Maharashtra and Amar Nath & Ors. v. State of Haryana were given with respect to the provisions of the Code, particularly S.397(2), they were correctly decided and would have no application to the interpretation of S. 11 (1) of the Act, which expressly excludes the provisionsof the Code of Criminal Procedure by virtue of the non obstante clause"
18. In the case of Neelam Mahajan vs State, Crl.MC No.2242/2014 decided on 08.04.2016, the Hon'ble High Court held thus:
"16. The main question arises for consideration is whether the order passed under Section 311 of Cr.P.C. is an interlocutory order or not? In this regard catena of judgments of Hon'ble Supreme Court has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determin es the principal matter in question is termed final and simultaneously, an interlocutory order, though not CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 33 of 44 pages conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. Therefore, in the considered opinion of this Court, if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could be attached to the order.
17. In V.C. Shukla vs. State through CBI, , 1999 SCC (Cri.) 393, the following propositions were laid:
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 34 of 44 pages (5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art.136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order. framing charges, the Act. works serious injustice to the accused.
18. Applying these tests to the impugned order, this Court finds that the order permitting the re-examination of the petitioners is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. Furthermore, it is impossible to spell out the concept of an interlocutory order unless it is understood in contradistinction to or in contrast with a final order." (emphasis supplied) FINAL ANALYSIS
19. It is in the light of above described matrix that these revisions have to be analysed. To recapitulate, the orders assailed by these revision petitions are :
(a) rejection of request of the revisionists that arguments on joinder of charges be heard first and only thereafter, arguments on charge be heard;
(b) rejection of adjournment request of counsel for some of the revisionists at 04:00 pm, with liberty to file written arguments;
(c) dismissal of application under Section 91/207 CrPC on account of delay of 18 years and the subject documents, admittedly not forming part of any statement under Section 161 CrPC; and
(d) dismissal of application under Section 173 (8) CrPC on the ground that no investigation is pending.
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 35 of 44 pages
20. What is to be seen is as to whether the above orders impugned in these revision petitions are interlocutory orders, thereby hit by the bar under Section 397(2) CrPC, or the same are intermediate orders, thereby amenable to scrutiny by this court under revisional jurisdiction. In view of the legal position culled out of the judicial precedents cited above, what is to be seen as to whether the impugned orders, or any of those, on being reversed would terminate the main proceedings or despite being reversed, the main proceedings would continue. If the main proceedings would continue on setting aside any of the impugned orders, then such impugned order would not be intermediate order, and would be interlocutory order, not amenable to scrutiny under revisional jurisdiction of this court on account of bar under Section 397 (2) CrPC.
21. Applying the test as crystalized above, it cannot be held by any stretch of imagination that rejection of request of the revisionists that arguments on joinder of charge be heard first and only thereafter, arguments on charge be heard; or rejection of the adjournment request of counsel for some of the revisionists at 04:00 pm, though with liberty to file written arguments, are such orders, which if set aside, would lead to termination of main proceedings.
21.1 Both these impugned orders, viz. decision of the learned trial court to hear arguments on application under Sections 219 & 220 CrPC simultaneous with arguments on charge, and decision of the learned trial court not to grant any further adjournment to address CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 36 of 44 pages arguments, though with liberty to file written arguments are procedural steps in the aid of trial proceedings. Even at the anvil of the case of Amar Nath (supra), these two orders do not deal with rights of either of the parties.
21.2 In my anxiety to ensure that no injustice takes place, I have also examined as to whether the above mentioned two orders abrogate right of the accused to fair trial. But the answer arrived at is in negative. For, the accused certainly has a right to fair trial, but that right cannot be extended to dictate as to whether arguments on an issue be heard prior to another issue. It is the absolute prerogative of the trial court to decide as to whether arguments on two issues be heard together or one by one. Even as regards the alleged abrogation of right to be heard on account of rejection of adjournment request, it would be significant to note that while declining the adjournment request on the ground of non availability of a lawyer who was yet to file his vakalatnama, the learned ACMM did not post the matter for orders straight away, but granted opportunity to file written submissions within 10 days and even the returnable date was not for orders but for further arguments.
21.3 Consequently, the said two orders cannot be held to be intermediate orders. In other words, those are interlocutory orders, which cannot be assailed by way of criminal revision in view of bar under Section 397 (2) CrPC.
22. Similarly, setting aside the order, whereby application under Section 91/207 CrPC was dismissed on account of delay of 18 CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 37 of 44 pages years and on the ground that the subject documents, admittedly did not form part of any statement under Section 161 CrPC; and/or setting aside the order, whereby application under Section 173 (8) CrPC was dismissed on the ground that no investigation is pending, would not lead to termination of the main proceedings. Consequently, these orders also cannot be held to be intermediate orders. In other words, these also are interlocutory orders, which cannot be assailed by way of criminal revision in view of bar under Section 397 (2) CrPC.
22.1 In the case of Sethuraman vs. Rajamanickam, Criminal Appeal No. 486-487 of 2009 (Arising out of SLP (Crl.) No. 2688 -89 of 2005) the Hon'ble Supreme Court held thus:
"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 CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 38 of 44 pages of interlocutory nature, in which case, under Section 397(2) Cr.P.C., revision was clearly not maintainable." (emphasis supplied) 22.2 In the case of Arun Kumar vs. State of Bihar, Manu/BH/1413/2011, an order under Section 173 (8) CrPC was held to be an interlocutory order, revision against which would come under the teeth of Section 397 (2) CrPC.
23 As mentioned above, after conclusion of final arguments, counsel for the revisionists in one of these petitions sought and was allowed to address additional arguments. Those additional arguments mainly dealt with power of the court of ACMM to deal with the chargesheets filed by the EOW. Contention on behalf of revisionists was that the court of ACMM is not empowered by the High Court to try chargesheets filed by EOW, therefore whether the impugned orders are intermediate or interlocutary, this court must intervene in revisional jurisdiction.
23.1 On this aspect, it would be significant to note that the revisionists themselves moved different fora including the Delhi High Court and were permitted opportunity to address further arguments also before the same court of ACMM. That being so, challenge to the jurisdiction of ACMM, that too having successfully dragged the proceedings before the court of ACMM for about 20 years, is nothing but a ruse.
23.2 Besides, admittedly the cases under reference were CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 39 of 44 pages transferred to the court of learned ACMM (Central) with consent and at joint request of all parties vide order dated 23.07.2011 of learned CMM, Delhi. But thereafter successive attempts were made by the accused persons to get the cases transferred out of the court of ACMM (Central) in which they failed. Finally, the petitions bearing number Crl. MC no. 515/2013 and Crl. MC no. 56/2014 were dismissed by the Hon'ble Single Judge of the Delhi High Court, observing that shuttling of cases from one court to another is not in the interest of justice. Even presently, transfer petitions titled "S.P.Gupta vs. State" bearing TP (Crl) no. 11/2021 and "Vipul Gupta vs. State" bearing TP (Crl) no. 13/2021 filed by the accused persons are pending in this court.
23.3 Further, there is no order of the ACMM, impugned before this court, whereby a challenge to the jurisdiction of ACMM has been dealt with. Therefore, this court would refrain from exercising the revisional jurisdiction to comment on the jurisdiction of ACMM to deal with the chargesheets filed by EOW and intervention in that regard sought by the revisionists on this ground is not even sustainable.
23.4 Even otherwise, such a challenge would prima facie fail on the anvil of test as regards the scope of Section 397 (2) CrPC insofar as even if the objection to the jurisdiction of ACMM to deal with chargesheets filed by EOW is upheld, the consequence would be transfer of cases to the CMM and not termination of the main proceedings and consequently such order of the ACMM entertaining chargesheets filed by EOW being interlocutory order would be hit by CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 40 of 44 pages Section 397 (2) CrPC.
23.5 On the aspect of jurisdictional challenge, learned counsel for revisionists placed reliance on the judgment of Hon'ble Orissa High Court in the case of Bhima Naik vs. State, 1975 SCC OnLine Ori 101 and argued that an order passed without jurisdiction is a complete illegality, nullity and non est in the eyes of law, so not hit by Section 397 (2) CrPC. But the judgment, read in its entirety deals with powers of the High Court under Section 401 or Section 482 CrPC and not with powers of the Court of Sessions under Section 397 CrPC. In para 49 of the said judgment, the Hon'ble Orissa High Court clearly held that interlocutory orders passed without jurisdiction are no orders at all and can be quashed by the High Court in exercise of power under Section 401 or Section 482 CrPC.
23.6 Further, Section 17(2) CrPC clearly stipulates that any Metropolitan Magistrate may be appointed by the High Court as Additional Chief Metropolitan Magistrate and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under the Code or under any other law as the High Court may direct. In order to deal with the chargesheets pertaining to the offences under the Indian Penal Code, no separate notification of the High Court empowering the court of ACMM is required. Further, EOW is only a wing of Crime Branch of the Delhi Police and chargesheets filed by the Crime Branch are undisputedly tried by the courts of ACMM.
23.7 In the case of Jaya Suresh Gangar vs. State of CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 41 of 44 pages Maharashtra, Manu/MH/0961/2018, while dealing with the delegation of authority under Section 14 of the SARFAESI Act, the Hon'ble Bombay High Court held that as far as exercise of judicial powers is concerned, the Chief Metropolitan Magistrate and the Additional Chief Metropolitan Magistrate stand on same footing.
23.8 The contention of learned counsel for revisionists that there is no order from the Hon'ble Delhi High Court authorising the court of learned ACMM to deal with the chargesheets filed by EOW is even factually not correct. On behalf of State, a number of orders of transfers/postings of Judicial Officers issued from the Delhi High Court have been filed, thereby assigning the cases investigated by EOW to the courts of ACMMs. One of the communications bearing no. 4527-51/CMM/Delhi dated 08.04.2009 of the then CMM, Tis Hazari Courts, Delhi (placed on record by counsel for complainant defacto through learned prosecutor) reflects that vide order bearing no. 4/DHC/Gaz.3/VI.E2/2009 dated 28.02.2009, the cases of EOW were assigned to all courts of ACMMs as per their jurisdiction. Conversely, no order of the Hon'ble Delhi High Court has been produced before this court whereby any of the EOW matters was directed to be transferred to the court of CMM from the court of ACMM. Even at the stage of establishing 11 CMM courts vide order dated 19.02.2013 in Delhi, the cases explicitly assigned to the courts of CMMs were only those investigated by Special Cell or Special Task Force and not those investigated by EOW.
CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 42 of 44 pages CONCLUSION
24. The irresistible conclusion is that all the orders impugned in these four criminal revision petitions were interlocutory orders and therefore not amenable to scrutiny under revisional jurisdiction of this court in view of bar under Section 397 (2) CrPC. Therefore, all these revision petitions are liable to be dismissed. Further, as mentioned above, the revisionists have been adopting multipronged approach in an effort to ensure that the trials pending before the court of learned ACMM (Central) do not proceed further. On same issue, the revisionists have been approaching the trial court, this court and even the Hon'ble High Court simultaneously either through same accused or through co-accused persons, as would be reflected from various ordersheets recorded in these revision proceedings. As also mentioned above, even the Hon'ble Delhi High Court took a view that the revisionists adopted ploy to delay the trial by concealing the fact regarding filing applications seeking similar reliefs before the trial court. Considering such conduct on the part of revisionists, the present revision petitions are held not just frivolous and devoid o f merit but even mischievous attempt to derail the trials, which are pending at the stage of framing charge for almost two decades. Therefore, all these revision petitions are dismissed with cost of Rs. 15,000/- in each revision petition, to be deposited by the respective revisionists within one week online with www.bharatkeveer.gov.in, the website of Ministry of Home Affairs, Government of India.
25. Copy of this judgment be sent to the learned trial court CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 43 of 44 pages with the request to ensure compliance as regards cost imposed. Revision files be consigned to records.
Announced in the open court Digitally signed by GIRISH on this 09th day of December, 2021 GIRISH KATHPALIA KATHPALIA Date: 2021.12.10 11:44:02 +05'30' (GIRISH KATHPALIA) Principal District & Sessions Judge (HQs) Tis Hazari Courts/Delhi CR No. 54/2021 Satya Pal Gupta vs. State CR no. 75/2021 Vinod Kumar Bindal vs. State CR no. 76/2021 S.P. Gupta vs. State CR no. 77/2021 Vipul Gupta vs. State page 44 of 44 pages