Delhi District Court
Bindu Sharma vs . State & Ors. on 27 May, 2023
Bindu Sharma Vs. State & Ors.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 05, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI
CR NO.: 52/2023
UNIQUE CASE ID NO.: DLCT010065612023
IN THE MATTER OF :
Bindu Sharma
W/o Sh. Vinod Kumar Sharma
R/o 317072, First Floor,
Lal Darwaza, Sita Ram Bazar, Delhi .... Revisionist
VERSUS
1. State
2. Sudhir Sharma
S/o Sh. Mool Shankar Sharma
R/o 317072, 2nd Floor,
Lal Darwaza, Sita Ram Bazar, Delhi
3. Suresh Satrawal
S/o Late Sh. Ram Kumar
R/o 317072, Ground Floor,
Lal Darwaza, Sita Ram Bazar,Delhi
Digitally signed
by VIJAY
SHANKAR
VIJAY Date:
SHANKAR 2023.05.27
18:17:56
+0700
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Bindu Sharma Vs. State & Ors.
4. Kartar Singh
S/o Sh. Kanhaiya Lal
R/o 317072, 2nd Floor,
Lal Darwaza, Sita Ram Bazar,Delhi .... Respondents
Date of institution of the revision petition : 15/05/2023
Date on which judgment was reserved : 24/05/2023
Date of judgment : 27/05/2023
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal revision petition under section 399 r/w section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the revisionist against the order dated 09/05/2023 (hereinafter referred to as 'impugned order') passed by Sh. Anurag Dass, Ld. ACMM2, Central, Tis Hazari Courts, Delhi, in case FIR No. 297/2015 PS Hauz Qazi titled as " State Vs. Sudhir Sharma & Ors." thereby application under section 311 Cr.P.C. of the complainant for summoning the witness to prove DD No.34B dated 23/11/2015, was dismissed.
Digitally signedby VIJAY SHANKAR
VIJAY Date:
SHANKAR 2023.05.27
18:18:50
+0700
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In the present revision petition, the revisionist has prayed to summon the record/judicial file and to setaside the impugned order dated 09/05/2023 passed by the Ld. Trial Court.
2. Brief facts necessary for just adjudication of the present revision petition as stated in the present revision petition are that the revisionist/ complainant had preferred an application u/s. 311 Cr.P.C. for summoning the witness to prove DD No.34B dated 23/11/2015 and the same was dismissed by the Ld. Trial Court vide order dated 09/05/2023.
The revisionist/ complainant had lodged the FIR No.297/2015 PS Hauz Qazi U/s. 506/509/34 IPC, wherein she alleged that some unknown persons had broken the CCTV Cameras installed at her home and when she inquired, the respondent No.2 to 4 told that they had committed the offence. Thereafter, investigation of the case was conducted and chargesheet was filed against the accused persons. During her crossexamination, the revisionist/ complainant had reiterated before the Ld. Trial Court that the entire incident pertains to breaking of CCTV Cameras by the relatives of respondent Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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No.2 to 4. The revisionist/ complainant attempted to bring on record copy of complaint dated 23/11/2015, however, the same was disallowed by the Ld. Trial Court, being illegible copy of the said complaint. On 05/05/2023, revisionist/ complainant was performing religious ceremonies/ pooja at her house and during cleaning of her wardrobe, she found DD No.34B dated 23/11/2015. The aforesaid DD is very essential piece of evidence for just decision of the case.
Aggrieved by the impugned order dated 09/05/2023, the revisionist/ complainant has preferred the present revision petition.
3. The revisionist has challenged the impugned order on the grounds, as mentioned in the present revision petition. Grounds of revision The Ld. Trial Court has ignored the basic tenets of judicial propriety despite the fact that the complaint dated 23/11/2015 pertains to the genesis of the incident. The impugned order has been passed in violation of law and ignoring judicial mandate. The revisionist/ complainant was not afforded the opportunity to address on the application u/s. 311 Cr.P.C. Findings of the Ld. Trial Court are against the provisions of criminal law and same Digitally signed by VIJAY SHANKAR VIJAY Date:
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are based upon hypothetical presumption and conjectures. The Ld.
Trial Court has not applied its judicial mind and has passed the impugned order by bypassing the facts placed on record. The Ld. Trial Court has wrongly interpreted various provisions of law. The revisionist/ complainant has not filed any other petition in the Hon'ble High Court and Hon'ble Supreme Court on the same cause of action.
4. This Court already heard the arguments on the maintainability of the present revision petition advanced by Ld. Counsel for the revisionist. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned order is not an interlocutory order and the present revision petition against the impugned order is maintainable and impugned order is liable to be set aside on the grounds, as mentioned in the present revision petition.
The counsel for the revisionist in support of his contentions has relied upon case law titled as "Honnaiah T.H. Vs. State of Karnataka & Ors." (Criminal Appeal No.1147/2022 decided by Hon'ble Supreme Court of India on 04/08/2022).
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2023.05.27
18:21:34
+0700
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5. By way of present revision petition, the revisionist has
challenged the order dated 09/05/2023 passed by the Ld. Trial Court. The impugned order is reproduced as under: "09.05.2023 Present: Sh. Vikram Dubey, Ld. APP for the State.
Accused Kartar Singh absent.
Remaining both accused present alongwith Sh. R. K. Bhardwaj, Ld. Counsel.
Heard. Perused.
An application seeking exemption from personal appearance filed on behalf of the accused Kartar Singh stating that he could not appear before the Court today due to demise of his brother.
For the reason cited, application seeking exemption from personal appearance filed on behalf of the accused Kartar Singh for today only with direction to remain present on next date of hearing.
An application u/s 311 Cr.PC filed on behalf of complainant duly forwarded by Ld. APP for State for summoning witness to prove DD No. 34B dated 23.11.2015.
Ld. APP for State concedes that the said DD records prior incident.
Charge in the instant case were already been framed in the year 2017 and the complainant has already been examined.
In these circumstances, there seems no plausible explanation for moving the present application u/s 311 Cr.PC, same stands dismissed accordingly. Digitally signed by VIJAY SHANKAR
VIJAY Date:
SHANKAR 2023.05.27
18:21:41
+0700
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Put up for final arguments as last and final opportunity on 16.05.2023 failing which orders shall be passed on the basis of material available on record.
(Anurag Dass) ACMM2/Central/THC/Delhi 09.05.2023"
6. For the sake of ready reference, section 397 Cr.P.C. is reproduced as under: Section 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 subsection and of section 398.
(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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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.
7. A plain reading of Section 397 Cr.P.C. makes it manifest that Section 397(1) Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court before the revisional court i.e. the High Court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section. Now, it is significant to note that Section 397 (2) Cr.P.C. mandates that the power of revision conferred by subsection (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order in any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under section 397 (2) Cr.P.C. to entertain revision against an interlocutory order.
The term "interlocutory order" as mentioned in section 397 (2) Cr.P.C. denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the Digitally signed by VIJAY SHANKAR VIJAY Date:
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parties. An order which is pure and simple interlocutory order, which do not decide anything finally is to be considered as interlocutory order and no revision against that interlocutory order is maintainable under section 397(1) Cr.P.C. in view of the express bar imposed under section 397(2) Cr.P.C.
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. An intermediate order is one which is interlocutory order in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
8. It was held by Hon'ble Supreme Court of India in case titled as " Amar Nath & Ors. Vs. State of Haryana & Anr.", {(1977) 4 SCC 137} that: Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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"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 subsection (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of wellknown legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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1973 Code. Thus, for instance, orders summoning
witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
It was also held by Hon'ble Supreme Court of India in case titled as " V.C. Shukla Vs. State through C.B.I", (AIR 1980 SC 962] that: (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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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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;
(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.
It was also held by Hon'ble Supreme Court of India in case titled as "Poonam Chand Jain and Anr. Vs. Fazru", {(2004) 13 SCC 269} that: "Wharton's Law Lexicon (14th Edn. p. 529) defines interlocutory order thus:
"An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all."
The principles/guidelines regarding the scope of criminal revision petition have also been laiddown by Hon'ble Supreme Court of India in case titled as "Girish Kumar Suneja Vs. Central Bureau of Investigation", {(2017) 14 SCC 809} and it was held that, "15. While the text of subsection (1) of Section 397 Cr.P.C.
appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by subsection (2) thereof. There is a complete prohibition on 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?
16. 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 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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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.
21. The concept of an intermediate order was further elucidated in Madhu Limaye Vs. 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 proceeding would continue.
Digitally signedby VIJAY
VIJAY SHANKAR SHANKAR Date:
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22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel V. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K.Patel case, SCC p.201, para11) "11. ..... It is now wellnigh 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 Maharastra, V.C. Shukla v.
State 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 objection 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."
27. Our conclusion on this subject is that while the Digitally signed by VIJAY SHANKAR VIJAY Date:
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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 petition 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 para 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 the extraordinary discretionary power available under Section 397 Cr.P.C."
It was held by Hon'ble High Court of Delhi in case titled as " Neelam Mahajan and Anr. Vs. The State & Ors.", {(2016) 229 DLT (CN) 29} that: "........ In this regard catena of judgments of Hon'ble Supreme Court of India has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has to be considered separately in Digitally signed by VIJAY SHANKAR VIJAY Date:
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relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final and simultaneously, an interlocutory order, though not 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."
9. By way of present revision petition, the revisionist has challenged the impugned order dated 09/05/2023 passed by the Ld. Trial Court thereby application under section 311 Cr.P.C. of the revisionist/ complainant for summoning the witness to prove DD No.34B dated 23/11/2015, was dismissed.
Now this Court has to see as to whether the impugned order is interlocutory, intermediate or final order.
It was held by Hon'ble Supreme Court of India in case titled as " Sethuraman Vs. Rajamanickam", { (2009) 5 SCC 153 } that: "Secondly, what was not realised was that the orders Digitally signed by VIJAY SHANKAR VIJAY Date:
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passed by the trial court refusing to call the documents and rejecting the application under Section 311 CrPC, were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) CrPC. The trial court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondentaccused 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 CrPC for production of documents and other on the application under Section 311 CrPC 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."
10. It is well settled law that scope of revisional jurisdiction is very limited and same cannot be exercised in a routine manner. It is Digitally signed by VIJAY SHANKAR VIJAY Date:
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also well settled law that question/ issue of maintainability of the criminal revision can be examined by the Court at any stage.
In view of the law laid down in Sethuraman case (Supra), it is clear that order on the application under Section 311 Cr.P.C. is an interlocutory order.
On perusal of impugned order, it is clear that same is neither final nor intermediate but the same is purely an interlocutory order. The impugned order cannot said to be a final or intermediate order in any manner. If the impugned order is set aside, then there would be no culmination of the proceedings.
There is no dispute regarding the propositions laid down in the case law relied upon by counsel for the revisionist, however, the same are not applicable to the facts and circumstances of the present case. There is nothing in the case law relied upon by counsel for the revisionist to show that criminal revision is maintainable against the order on the application u/s. 311 Cr.P.C.
11. Applying priori and posteriori reasonings and law laid down in Amar Nath, V.C. Shukla, Poonam Chand Jain, Girish Kumar Suneja, Digitally signed by VIJAY SHANKAR VIJAY Date:
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Neelam Mahajan and Sethuraman cases (supra), this Court is held that the impugned order passed by the Ld. Trial Court is purely an interlocutory order and being interlocutory order, the impugned order is not amenable to the revisional jurisdiction of this Court.
Accordingly, the present revision petition of the revisionist is dismissed, being not maintainable. No order as to costs. Nothing stated herein shall tantamount to be an expression of opinion on the merits of the case.
Trial Court Record be sent back alongwith the copy of this judgment. Revision file be consigned to record room after due compliance.Digitally signed by VIJAY SHANKAR
VIJAY Announced in the open Court Date:
SHANKAR 2023.05.27
18:23:50
on 27/05/2023 +0700
(VIJAY SHANKAR)
ASJ05 (Central)
Tis Hazari Courts, Delhi
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