Delhi District Court
Rushal Garg vs State Of Nct Of Delhi on 22 April, 2024
CR no. 205/2024 Rushal Garg Vs State NCT of Delhi & Anr.
IN THE COURT OF MS MANU GOEL KHARB
SPECIAL JUDGE (NDPS)-02: DWARKA COURTS
NEW DELHI
Criminal Revision No.: 205/2024
(In FIR no.349/202, P.S. Dwarka Sector-23)
CNR No.DLSW01-003290-2024
Rushal Garg
S/o Sh. Karamjit Garg,
R/o H. No. C-601, JDA Flats,
Muthi, Jammu.
.... Revisionist
VERSUS
The State (NCT of Delhi)
Through SHO, P.S. Dwarka Sector-23
.... Respondent
ORDER
1. Present criminal revision petition under section 399 of the Code of Criminal Procedure, 1973 (Cr.P.C) has been filed by the revisionist against the order dated 28.03.2024 passed by the court of Ms. Abhilasha Singh, Ld. Metropolitan Magistrate02, Mahila Court, South West District, Dwarka Courts, New Delhi in case FIR no. 349/2023, P.S. Dwarka Sector23, whereby search warrants has been issued against the revisionist for search and seizure of istridhan articles from (1) House no. 707, Sector80, Mohali, Punjab and (2) House no. C601, JDA Flats, Muthi, Jammu.
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2. It is mentioned in the revision petition that the search warrant has been issued for vexing, humiliating, defaming and pressurizing the revisionist and his family members because they did not succumb to the illegal demands made by the complainant on the conciliatory meetings. It is further alleged that search and seizure of a Government allotted residence of the revisionist will tarnish his image. It is further alleged that the revisionist has already returned the entire istridhan articles on 10.01.2024 as mentioned by her in Domestic Incident Report (DIR) and there is nothing more left in the possession of the revisionist. It is further stated that the complainant admits that she was only in possession of 1 gold set, 12 diamond set, gold bangles and a rose ring out of which she already has the possession of gold bangles and a rose ring. It is further stated that no notice under section 91 Cr.P.C. has either been served upon the revisionist or the members of his family by the IO for recovery of istridhan. It is further alleged that issuance of search warrant is a serious matter and as such the application should not be decided in mechanical manner. It is further stated that the application filed by the IO before the Ld. Trial Court does not contain either a list of documents to be recovered nor its description and it is settled law that machinery of criminal law cannot be used for seeking recovery of either istridhan articles or money.
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Therefore, it is prayed that order dated 28.03.2024 passed by the Ld. Trial Court be set aside.
3. On the other hand, it is submitted by the Ld. Addl.
P.P. for the State that there is no illegality or infirmity in the order passed by the Ld. Trial Court. That none of the grounds raised in the revision is sustainable in the eyes of law. He further argued that the revision petition is filed against the search and seizure warrant which is an interlocutory order, therefore, no revision can lie against it and revision petition is not maintainable.
4. IO has opposed the revision petition and filed reply dated 18.04.2024 and stated that on 10.01.2024 total 32 articles including few jewellery articles were handed over by the accused side to the representative of the complainant side but all the articles as per the admitted list given by the complainant before CAW Cell were not recovered. On 10.01.2024 itself, the complainant provided total 11 coloured photographs showing some jewellery articles alleged to be given to her at the time of Fera Ceremony which were also mentioned in the admitted list of CAW Cell but was not returned by the accused side. It is further stated that notice under section 41A Cr.P.C. has already been issued to all the three accused persons and they have also joined the investigation but there was a CNR No.DLSW01-003290-2024 Page 3 of 9 CR no. 205/2024 Rushal Garg Vs State NCT of Delhi & Anr.
need for issuance of search warrant for recovery of the articles mentioned in the application dated 10.01.2024 as the accused has totally denied that they do not have anything else in their possession.
5. Specific query was raised by the court to the revisionist as to whether he had returned all the articles as per the admitted list to which Ld. counsel for the revisionist stated after seeking instructions that they have already returned all the articles in their possession and do not have anything else pertaining to the complainant.
6. I have heard the submissions and perused the order dated 28.03.2024 as well as reply of IO.
7. Vide order dated 28.03.2024, search warrant for house no (1) matrimonial house no. 707, Sector80 Mohali Punjab and (2) House no. C601, JDA Flats, Muthi, Jammu was issued against the accused/ revisionist by the Ld. Trial Court as accused had failed to return all the istridhan articles of the complainant.
8. In the present case, the moot question to be decided at the outset is whether revision petition can be filed against the order of issuance of search warrants.
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9. The relevant provision of Section 399 Cr.P.C is reproduced herein below:
Sessions Judge's powers of revision.--(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under subsection (1) of section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub section (1), the provisions of subsections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
10. In judgment titled as "Amarnath & Ors. Vs. State of Haryana", AIR 1977 SC 2185 passed by Hon'ble Supreme Court of India, while discussing the term interlocutory order, Hon'ble Supreme Court ruled that the term "interlocutory order" in Section 397 (2) Cr.P.C. has been used in a restricted sense and not in any broad sense and include orders of a purely interim or temporary nature which do not decide or touch the important rights or 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 the order, CNR No.DLSW01-003290-2024 Page 5 of 9 CR no. 205/2024 Rushal Garg Vs State NCT of Delhi & Anr.
because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 Cr.P.C..
11. Hon'ble Supreme Court of India after discussing the Amarnath Judgment (Supra) has held in "Girish Kumar Suneja vs. CBI" Crl. Appeal no. 1137 of 2017 arising out of SLP (Crl.) No. 9503 of 2016 that 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 revisional jurisdiction i.e. 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 revisional jurisdiction. As far as an intermediate order is concerned, the court can exercise its revisional jurisdiction since it is not an interlocutory order.
12. Further, Hon'ble Supreme Court of India, defined intermediate order as an order which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Hon'ble Supreme Court of India also gave examples of two such intermediate orders i.e. an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory CNR No.DLSW01-003290-2024 Page 6 of 9 CR no. 205/2024 Rushal Garg Vs State NCT of Delhi & Anr.
in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceeding 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 certain way, the proceedings would terminate but if passed in another way, the proceeding would continue.
13. It was further held that in deciding whether an order challenged is interlocutory or not for the purpose of Section 397 of the Code, the sole test is not whether such order was passed during the interim stage. 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 of the Code.
14. Order for issuance of search warrant is an interlocutory order and when it is reversed it does not result in the termination or culmination of proceedings against the accused. Therefore, in considered view of the court, coercive processes aimed at securing the appearance CNR No.DLSW01-003290-2024 Page 7 of 9 CR no. 205/2024 Rushal Garg Vs State NCT of Delhi & Anr.
of an accused or are purely interlocutory in nature and cannot be, by any stretch of logic and reasoning, treated as orders declaring rights of the party.
15. The present petition has been filed by the petitioner under section 399 Cr.P.C. but the law related to maintainability of the revision petition in case of interlocutory order remains the same.
16. Appreciating the facts of this case, statues and in the backdrop of the above case laws it is evident that issuance of order for search and seizure is purely interlocutory orders in so far as no right of accused pertaining to trial has been decided therein and by virtue of Section 399 read with section 397 (2) Cr.P.C. no revision qua them can be filed. Moreover, Ld. Counsel for the revisionist have also conceded to the fact that the revisionist is not in possession of any other articles in possession of the complainant whereas there is a different list given by the IO regarding articles claimed by the complainant as istridhan but not recovered till date and in such an eventuality, the purpose would be served only by issuance of house search warrant for recovery of articles. Therefore, present revision petition is dismissed being nonmaintainable.
17. Copy of this order be sent to the Ld. Trial Court.
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18. Revision file be consigned to Record Room after due compliance. Digitally signed by Manu Goel Manu Goel Kharb Kharb Date: 2024.04.22 17:27:25 +0530 Announced in the open Court today i.e. 22.04.2024 (Manu Goel Kharb) Special. Judge (NDPS02) Dwarka Courts, New Delhi CNR No.DLSW01-003290-2024 Page 9 of 9