Delhi District Court
Mehboob Hasan vs Govt. Of Nct Of Delhi on 15 September, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQ)
TIS HAZARI COURTS, DELHI.
Revision Petition No. 109/2020
MEHBOOB HASAN
S/o LATE MOHD. SULEMAN
R/o VPO MALAB
DISTRICT NUH (MEWAT)
HARYANA
......PETITIONER
VERSUS
GOVT. OF NCT OF DELHI
.......RESPONDENT
Date of filing : 12.02.2020
First date before this court : 12.02.2020
Arguments concluded on :11.09.2020
Date of Decision : 15.09.2020
APPEARANCE : Shri Shaad Anwar, counsel for revisionist
JUDGMENT
1. By way of this petition brought under Section 397 CrPC, the revisionist facing trial in magisterial court for offence under Section 454/380 IPC, has assailed order dated 30.01.2020 of the learned trial magistrate whereby application under Section 311 CrPC of the revisionist for recall of PW1 and PW2 for further cross examination was dismissed. After institution of this revision petition, counsel for revisionist was called upon to address on maintainability of this revision petition in view of bar under Section 397(2) CrPC.
Revision Petition No. 109/2020
Mehboob Hasan vs Govt. of NCT of Delhi Page 1 of 6 pages
2. This petition was taken up for arguments through video conferencing on account of Covid-19 lockdown. But learned counsel for revisionist opted to file written arguments and the same have been examined me.
3. The application under Section 311 CrPC of the revisionist/accused was dismissed by the learned trial magistrate mainly on the ground that PW1 and PW2, sought to be recalled for further cross examination had already been cross examined at length by the revisionist almost 3 years ago and all that while, the revisionist/accused opted not to seek recall of those two witnesses. The learned trial magistrate also recorded that on 14.02.2017 and 07.11.2017, when PW1 and PW2 were respectively examined, the revisionist/accused had stated specifically on record that being graduate and well informed person he did not require any legal assistance and that being, so the said witnesses were tendered for being cross examined by the revisionist/accused, and he cross examined them at length. The learned trial magistrate also recorded in the impugned order that apart from PW1 and PW2, the revisionist/accused had personally cross examined PW10, the Investigating Officer, PW11 retired SI Lajja Ram, PW12 HC Jitender Kumar and PW13 Mohd. Ahsan Qureshi at length. Considering these circumstances in the light of judicial precedent of Hon'ble Delhi High Court, the learned trial magistrate came to the conclusion that the application under Section 311 CrPC had been brought by the revisionist/accused with oblique purposes of filling up the lacunae and delaying the trial.
4. In the written arguments filed by learned counsel for revisionist, there is no mention as to for what purpose the witnesses PW1 and PW2 who have already been cross examined at length need to be recalled. The written arguments are totally silent as to questions on what aspect should have been asked to PW1 and PW2 in cross examination, but the same were not asked by the revisionist. Learned counsel for revisionist in the written arguments has referred to the judgment of Hon'ble Revision Petition No. 109/2020 Mehboob Hasan vs Govt. of NCT of Delhi Page 2 of 6 pages Supreme Court in the case of Raja Ram Prasad Yadav vs State of Bihar, (2013) 14 SCC 461, in which the Hon'ble Supreme Court culled out the principles to be kept in mind while adjudicating an application under Section 311 CrPC.
5. So far as the principles to be kept in mind while adjudicating application under Section 311 CrPC are concerned, the same are not in dispute at present. The dispute presently before this court is as to whether an order dismissing an application under Section 311 CrPC is amenable to revisional jurisdiction of this court. On that aspect, no arguments have been advanced on behalf of the revisionist.
6. At the very outset, it would be significant to note that the present case stands at a footing totally distinct from a case, where in the absence of counsel a witness was tendered to the accused for cross examination and the accused being an illiterate or a lay person did not ask any question in cross examination. In the present case as mentioned above, it is the revisionist/accused himself, who stated, that too on record, that he did not want any legal assistance and being an educated person, he would cross examine the witnesses on his own.
7. Section 397(1) CrPC confers on the High Court as well as 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 the said vast revisional powers and the purpose of the said check is to curb delays in the decision of the criminal cases, in order to ensure fair and expeditious trial.
8. 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 acquittal or conviction is a Revision Petition No. 109/2020 Mehboob Hasan vs Govt. of NCT of Delhi Page 3 of 6 pages final order. The issue lies while distinguishing between an interlocutory order and an intermediate order, which distinction is necessary in view of the statutory bar created by Section 397(2) CrPC, which curtails the revisional powers of the High Court and the Court of Sessions with respect to interlocutory orders.
9. In the case of K.K. Patel vs State of Gujarat, (2000) 6 SCC 195, the Hon'ble Supreme Court of India held 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 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." (emphasis supplied)
10. In the case of Girish Kumar Suneja vs CBI, {Cr. Appeal No. 1137 of 2017, arising out of SLP (Crl.) 9503/2016, decided on 13.10.2017 by the Bench of Hon'ble Mr. Justice Madan B. Lokur}, the Hon'ble Supreme Court of India elaborately discussed the law related to right to file revision petition under Section 397 CrPC and recapitulated the previous judicial precedents, including those cited above, and held thus :
"16. While the text of sub-section (1) of Section 397 of the 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 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?
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 Revision Petition No. 109/2020 Mehboob Hasan vs Govt. of NCT of Delhi Page 4 of 6 pages 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. ......
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 :
"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, Madhy 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 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."(Emphasis supplied by us).
....
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 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 which if set aside would result in culmination of the proceedings." (emphasis supplied)
11. In the backdrop of above cited law, in order to determine as to whether the impugned order in the present case is interlocutory order (and thereby hit by Section 397(2) CrPC) or the same is intermediate order (and thereby amenable to the revisional jurisdiction of this court), the test is as to whether setting aside the impugned order would lead to termination of proceedings and if so, the impugned order cannot be held to be interlocutory order.
Revision Petition No. 109/2020
Mehboob Hasan vs Govt. of NCT of Delhi Page 5 of 6 pages
12. As mentioned above, by way of the impugned order, application under Section 311 CrPC of the revisionist/accused was dismissed. If the order impugned in the present case (whereby application of the revisionist under Section 311 CrPC to recall the PW1 and PW2 for further cross examination was dismissed) is set aside, the result would be recall of the PW1 and PW2 for cross examination and not termination of proceedings. That being so, in my considered view the impugned order is not intermediate order but interlocutory order, so the same is not amenable to revisional jurisdiction of this court.
13. The Hon'ble Delhi High Court also in the case of Neelam Mahajan vs The State, Cr. MC 2242/2014 decided on 08.04.2016 held that an order passed under Section 311 CrPC is interlocutory in nature, so not amenable to revisional jurisdiction and that an interlocutory order would not cease to be interlocutory order merely because it disposes of an aspect in the course of proceedings even though adversely affecting a party for the time being.
14. In view of above discussion, I have no hesitation to hold that the impugned order is interlocutory order and not amenable to revisional jurisdiction of this court in view of Section 397(2) CrPC.
15. Therefore, the revision petition is dismissed as not maintainable. A copy of this judgment be sent to learned trial court and revision file be consigned to records.
Announced through videoconferencing due to Covid-19 lockdown on this Digitally signed by GIRISH 15th day of September, 2020 GIRISH KATHPALIA KATHPALIA Date: 2020.09.15 11:28:00 +05'30' (GIRISH KATHPALIA) District & Sessions Judge (HQ) Tis Hazari Courts Delhi 15.09.2020 Revision Petition No. 109/2020 Mehboob Hasan vs Govt. of NCT of Delhi Page 6 of 6 pages