Delhi District Court
Dr. Hema Jain vs . State Of Nct Of Delhi on 25 January, 2018
Dr. Hema Jain Vs. State of NCT of Delhi
CR No: 11/2018
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBI-I
DWARKA COURTS; NEW DELHI
Dr. Hema Jain
R/o 105 B, Manchahat Apartments,
Dwarka Sector-10,
New Delhi. ................Revisionist
VERSUS
The State ( Govt. of NCT of Delhi)
..........Respondent
CR No. 11/2018
Date of Institution 10.01.2018
Reserved for orders on 15.01.2018
Order announced on 25.01.2018
JUDGMENT
1. This is a revision petition under Section 397 r/w 401 Cr.P.C. against the impugned order dated 19.12.2017, passed by Ld. MM-01, Dwarka Court, New Delhi.
2. The present revision petition arises out of FIR No. 85/14, under Section 8/24 of Delhi Preservation of Trees Act, 1994 (hereinafter called DPT Act) and 506 IPC, registered at PS Palam Village.
3. The case FIR No. 85/14 was registered on the basis of complaint of Sh. Narender Kumar Jain wherein he CR No:11/2018 Page 1 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 stated that he is residing at WZ-603 A, near Jain Dharamshala, Badiyal Mohalla, Palam Village, Delhi and on 13.02.2014 at about 1 PM he noticed that a peepal tree standing with the wall of house No. WZ 603B which was about 20 inch in width has been cut at the instance of Sh. Ramesh Chand Jain and Smt. Hemlata Jain.
4. After conclusion of investigation, charge sheet for the offences under Section 8/24 of DPT Act and 506 IPC was filed against accused Dr. Hema Jain (revisionist herein) in the court of Ld. MM.
5. Vide order dated 18.09.2015 Ld. MM was pleased to summon the accused ( revisionist herein) for the offences under Section 8/24 of Delhi Preservation of Trees Act, 1994 (hereinafter called DPT Act) and 506 IPC.
6. Vide order dated 16.11.2015 Ld. MM was pleased to frame notice under Section 251 Cr.P.C for the offences under Sections 8/24 of Delhi Preservation of Trees Act, 1994 (hereinafter called DPT Act) and 506 IPC against the accused (revisionist herein) to which she pleaded not guilty and claimed trial and thereafter case was fixed for PE.
7. ASI Shiv Lal was examined as PW4 and SI Sandeep was examined as PW5.
8. The contention of Ld. Counsel for the revisionist is that revisionist had filed an application dated 23.10.2017 for directing the prosecution for placing on CR No:11/2018 Page 2 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 record the statement of accused (revisionist herein) which was lying in the police file and accused (revisionist herein) filed another application under Section 311 Cr.P.C. dated 24.10.2017 for recalling of witnesses i.e. PW4 ASI Shiv Lal and PW5 Sh. Sandeep Kumar for their further cross examination.
9. By way of present revision petition, revisionist has challenged the impugned order dated 19.12.2017, passed by Ld. MM-01, Dwarka Court, New Delhi whereby Ld. MM has been pleased to dismiss the application dated 23.10.2017 filed by accused (revisionist herein) for directing the prosecution to place on record the statement of accused recorded during investigation and another application dated 24.10.2017 filed by accused (revisionist herein) under Section 311 Cr.P.C. for summoning PW4 ASI Shiv Lal and PW5 Sh. Sandeep Kumar for further cross examination.
10. In the impugned order Ld. MM has been pleased to observe:
I shall dispose off both the applications by same order. I have perused the record. Perusal of record shows that PW4 ASI Shiv Lal was examined on 09.09.2016 and he was cross examined at length on the same day. There is no mention in his testimony regarding any CD prepared by him. He has CR No:11/2018 Page 3 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 deposed that he took the photographs of felled tree with private camera and 7 photographs placed on judicial file which were earlier marked as Mark B were Ex.PW4/1 colly.
SI Sandeep was examined as PW5 on 28.11.2016 and in his examination in chief he has specifically stated that he has served notice u/s 41(A) Cr.P.C. on the accused Hema Jain Ex.PW5/A and on 03.06.2015 she joined the investigation and informed him that generally at the time of incident as mentioned in FIR she remains on duty and she was not present at the spot but she failed to produce any document regarding her presence on duty on the date of incident therefore, he filed the challan against the accused Hema Jain by keeping her in column no. 11. After going through the charge-sheet it is found in the list of documents attached with final report there is specific mention of photographs and CD at serial no. 6. It is also a fact that the CD placed on record has never been exhibited in the testimony of any witness. It has been held by Hon'ble Supreme Court in AG Vs. Shiv Kumar Yadav & Anr. In criminal Appeal Nos. 1187-1188 of 2015 ( arising out of SLP ( CRL.) Nos. 1899-1900 of 2015) decided on 10.09.2015 held that mere CR No:11/2018 Page 4 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 change of counsel cannot be ground to recall the witnesses. As far as supplying of statement of accused is concerned the charge
-sheet does not mention any such statement in the list of documents filed with the report u/s 173 Cr.P.C. Even PW5 in his testimony has admitted that the statement has not filed on record as the accused did not produce any document regarding her presence on duty.
Even if it is the defence of accused that she was on duty on the date of incident, same can be brought on record during the stage of DE. Accordingly, both applications are dismissed.
11. By way of application dated 23.10.2017, accused (revisionist herein) has prayed for directing the prosecution to file the statement of accused recorded during the course of investigation and by way of application under Section 311 Cr.P.C dated 24.10.2017, it is prayed that PW4 ASI Shiv Laland PW5 Sh. Sandeep Kumar be recalled for further cross examination.
12. Ld. Counsel for the revisionist has relied upon the judgment Mohit Alias Sonu and Another Vs. State of Uttar Pradesh and Another, (2013) 7 Supreme Court Cases 789, wherein Hon'ble Supreme Court has been pleased to hold:
25. In the light of the ratio laid down by this CR No:11/2018 Page 5 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 Court referred to hereinabove, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the application filed by the complainant under Section 319 of Cr.P.C. cannot be held to be an interlocutory order within the meaning of sub-section (2) of Section 397 Cr.P.C. Admittedly, in the instant case, before the trial court the complainant's application under Section 319 Cr.P.C. was rejected for the second time holding that there was no sufficient evidence against the appellants to proceed against them by issuing summons.
The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath case, an 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 as contemplated under Section 397(2) Cr.P.C.
13. In Sethuraman Vs. Rajamanickam, Criminal Appeal No. 486-487 of 2009, Hon'ble Supreme Court was pleased to hold:
CR No:11/2018 Page 6 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018
2. In these appeals, the common order passed by the Learned Single Judge of the Madras High Court in three Criminal Revisions, is in challenge. By the instant order, the Learned Single Judge set aside the three orders passed by the Trial Court dated 26.07.2004 in Crl.M.P. No. 3057 of 2004 in C.C. No. 216 of 2003 and dated 1.4.2004 in Crl.M.P. Nos. 4184 and 4185 of 2004 in C.C. No. 215 of 2003, and allowed those Crl.M.Ps. Shortly stated, the appellant herein had filed a criminal complainant under Section 200 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short), complaining therein that a cheque signed by the respondent and given for returning the amount of Rs.2Lakhs, which was a loan, was bounced and inspite of the notice given thereafter, the accused (respondent herein) had failed to return the money. A Trial ensued on the basis of this complaint and the complainant (appellant herein) was examined as a first witness for the prosecution on 24.8.2004.
He was cross-examined also. On 20.09.2004, the respondent herein filed CR No:11/2018 Page 7 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 applications under Section 91 Cr.P.C. and Section 311 Cr.P.C., seeking directions to produce the Bank Pass Books, Income Tax Accounts and the L.D.S. deposit receipts of the appellant, as also for recalling him for cross-examination. This was objected to by a Reply dated 24.9.2004. The Court passed an order on 1.10.2004, rejecting the applications made by the respondent/accused. The respondent/accused filed Criminal Revisions before the High Court under Section 397 Cr.P.C. and the High Court, by the impugned common order, proceeded to allow the same. It is this order, which has fallen for consideration before us in these appeals.
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 CR No:11/2018 Page 8 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 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.
14. Section 397(2) of The Code of Criminal Procedure, 1973 reads as under:
Section 397: Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and CR No:11/2018 Page 9 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 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, any 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) XXXXXXXXXXX CR No:11/2018 Page 10 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018
15. In Amar Nath and others v. State of Haryana and others, AIR 1977 Supreme Court 2185, Hon'ble Supreme Court was pleased to hold:
6. Let us now proceed to interpret the provisions of S. 397 against the historical background of these facts. Sub-section (2) of S. 397 of the 1973 Code may be extracted thus:
"The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."
The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-s (2) of S. 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been CR No:11/2018 Page 11 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in S. 397 (2) of the 1973 Code has been used in a restricted sense and not in any 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 the order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are CR No:11/2018 Page 12 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 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.
16. In Madhu Limaye v. State of Maharashtra AIR 1978 Supreme Court 47, Hon'ble Supreme Court was pleased to hold:
10. As pointed out in Amar Nath's case (AIR 1977 SC 2185) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397.
17. In V. C. Shukla v. State through C.B.I., AIR 1980 Supreme Court 962, Hon'ble Supreme Court was pleased to hold:
CR No:11/2018 Page 13 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 'It will be important to note that the words 'interlocutory order' used in this sub- section relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding. The object seems to be to cut-down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it has got a wide and diverse area of jurisdiction inasmuch as it regulates the procedure of trial not only of the large number of offences contained in the Indian Penal Code but also in other Acts and statutes which apply the Code of Criminal Procedure or which are statutes in pari materia the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. Fortunately, however, there are a few decisions which have interpreted the expression 'interlocutory order' as appearing in S. 397 (2) of the Code.
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18. The effect of impugned order on the proceedings has to be seen in arriving at the decision whether it is the interlocutory order or not. The prayer for directing the prosecution to file the statement of accused recorded during the course of investigation and PW4 ASI Shiv Lal and PW5 Sh. Sandeep Kumar be recalled for further cross examination has been made by the revisionist under Section 91 Cr.P.C. and 311 Cr.P.C. before the Trial Court and the said prayer has been finally rejected by the Ld. Trial Court vide impugned order dated 19.12.2017 and now the relief which has been sought before this court is in the form of directing the respondent to file on record the the statement of accused recorded during the course of investigation which is lying in the police file and PW4 ASI Shiv Lal and PW5 Sh. Sandeep Kumar be recalled for further cross examination which is sought in terms of Section 91 Cr.P.C. and 311 Cr.P.C. and effect of allowing the revision petition would be that this court will accept the request of the revisionist under Section 91 Cr.P. C. and 311 Cr.P.C. which orders are interlocutory in nature and barred by Section 397(2) Cr.P.C. . The impugned order has not finally determined any of the rights of the parties so as to terminate the proceedings regarding any of the rights of the parties. The impugned order dated 19.12.2017 is an interlocutory order and in view of Section 397(2) Cr.P.C., the same CR No:11/2018 Page 15 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 cannot be challenged by way of revision petition.
19. In Neelam Mahajan & Anr. Vs. State & Ors., MANU/DE/0871/2016, Hon'ble High Court of Delhi has given guidance for making a distinction between interlocutory order and final order. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra) , Hon'ble High Court has referred to decision in V. C. Shukla v. State through C.B.I., ( Supra) and has been pleased to observe:
17. In V.C. Shukla v. 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 oder. 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 CR No:11/2018 Page 16 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an oder 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;
(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.
20. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra), Hon'ble High Court has been pleased to observe:
18. Applying these tests to the impugned order, CR No:11/2018 Page 17 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 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.
21. The relevant prayer clause of the revision petition reads as :
(c) Allow both the applications as moved by the revisionist, i.e. for placing on record the statement of accused which is being lying in the police file and the another one under section 311 Cr.P.C. for recalling of witnesses, PW4 ASI Shivlal and PW5 IO SI Sandeep Kumar.
22. The perusal of the prayer clause of the revision petition shows that the relief which has been sought by way of this revision petition is for directing the respondent to bring on record the statement of accused which is lying in the police file and also to summon the witnesses namely PW4 ASI Shivlal and PW5 IO SI Sandeep Kumar for further cross examination. The reliefs as sought by the CR No:11/2018 Page 18 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 revisionist by way of revision petition are in terms of Section 91 Cr.P.C. and Section 311 Cr.P.C. Hence the decision in Mohit Alias Sonu and Another Vs. State of Uttar Pradesh and Another (Supra) is of no help to the revisionist.
23. In Neelam Mahajan & Anr. Vs. State & Ors. (Supra), Hon'ble High Court of Delhi has been pleased to observe:
20. After perusing the impugned order as well as the material placed before this court and in the light of the facts and circumstances of the present case this Court is also of the opinion that every interlocutory order merely because it disposes of an aspect, nay a vital aspect in the course of a pending proceeding even adversely affecting a party for the time being would not be something other than interlocutory.
21. This Court also perused the order passed by the revisional Court holding that the order passed under Section 311 Cr.P.C. is interlocutory order and therefore the same is not revisable and this court finds no reason to disagree with thereto.
24. In view of the decision in Neelam Mahajan & Anr. Vs. State & Ors. , ( Supra), there is no force in the contention of revisionist is that impugned order is not an CR No:11/2018 Page 19 of 20 D.O.J. 25.01.2018 Dr. Hema Jain Vs. State of NCT of Delhi CR No: 11/2018 interlocutory order merely because it disposes of an important aspect of the course of proceeding. Consequently, the revision petition thereby praying for directing the respondent to bring on record the statement of accused which is lying in the police file and to summon the witnesses namely PW4 ASI Shivlal and PW5 IO SI Sandeep Kumar for further cross examination is not maintainable in view of Section 397(2) Cr.P.C. and is dismissed.
25. Revision File be consigned to record room.
26. A copy of this judgment be sent to Trial Court for information.
Announced in the open (HARISH DUDANI) Court on 25.01.2018 Special Judge ( PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed by HARISH HARISH DUDANI
Date:
DUDANI 2018.01.25
15:14:44
+0530
CR No:11/2018 Page 20 of 20 D.O.J. 25.01.2018