Delhi District Court
M/S Vikas Promoters Pvt Ltd vs State (Nct Of Delhi ) on 21 September, 2020
IN THE COURT OF SH. DHARMENDER RANA,
ADDL. SESSIONS JUDGE-02, NEW DELHI DISTRICT
In Crl. Revision No. 134/2019
Case No.861/2019
M/s Vikas Promoters Pvt Ltd,
6/1, Asha Kiran, B-1 (Basement),
Jaidev Park Near East Punjabi,
New Delhi-110026,
Through its Director ... Revisionist
Versus
1. State (NCT of Delhi )
Through Standing Counsel, Criminal,
2. Mahajan Promoters & Developers (P) Ltd,
Flat No.14, Shaker Market,
Connaught Place, New Delhi-110001.
Through their Authorized Representative:-
Mr. Atul Mahajan. ... Respondents
Petition received by assignment : 13.12.2019
Arguments on petition concluded : 16.09.2020
Date fixed for pronouncement : 21.09.2020
Date of pronouncement : 21.09.2020
ORDER
1. By way of the instant order, I propose to dispose of a revision petition filed on behalf of Vikas Promoters Private Ltd through its Director Sh. Mohan Kumar Garg(revisionist) impugning order dated 30.09.2019 whereby Ld. ACMM-II, Patiala House dismissed the application of the revisionist dated 30.07.2020 for recalling the order dt. 01.07.2019, on account of non-prosecution.
2. Briefly stated, revisionist had filed an application under Section 340 CrPC (dated 4 th March,2011) before Ld. Trial Court for conducting an enquiry. The said application was listed for hearing on 01.07.2019. However, on 01.07.2019 the said application was dismissed in default on account of non-appearance of the Revisionist. Consequently, Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 1 of 8 Revisionist moved another application dated 30.07.2019 for restoration of the abovementioned application dated 4 th March, 2011 moved under Section 340 CrPC. Vide impugned order dated 30.09.2019, the restoration application also came to be dismissed on account of non-prosecution. Now the instant revision has been moved assailing the order Dated 30.09.2019.
3. Sh. Vishal Choubey, Ld. counsel for the revisionist has forcefully argued that the impugned order dated 30.09.2019 is not sustainable in the eyes of law as the Ld. MM has failed to give any reasons while rejecting the application of the revisionist. It is submitted that revisionist has filed an application U/s 340 Cr.P.C before Ld. ACMM for conducting an enquiry into the offences committed by Respondent No.2 and its directors. It is submitted that the said application was listed for arguments on 01.07.2019. However, the Counsel for the revisionist inadvertently noted the date as 09.07.2019 instead of the actual date given by the Ld. Court i.e 01.07.2019. It is further submitted that thereafter, on 27.09.2019, counsel for the revisionist inspected the record and found that vide order dt. 01.07.2019, Ld. ACMM has dismissed the complaint in default on account of non-appearance of the revisionist. It is further submitted that thereafter revisionist moved the application dated 30.07.2019 for recalling of order dt. 01.07.2019, which was listed on 17.09.2019 for adjudication. The contents of the application were explained to the Ld. ACMM, however, vide order dt. 17.09.2019, matter was adjourned for 30.09.2019. It is submitted that proxy counsel for the revisionist inadvertently noted the incorrect date of 26.11.2019. Thereafter, on 30.09.2019, the said application was dismissed for non-prosecution. It is submitted that the abovementioned error in noting the dates was totally unintentional and entirely due to inadvertent human error of the proxy counsel. It is submitted that the impugned order dt. 30.09.2019 is liable to be set aside and application dated 04.03.2011 needs to be restored on the following grounds:-
Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 2 of 8
(a) The impugned order is perverse and not sustainable in law and is thus liable to be set aside.
(b) That the impugned order is against the principles of natural justice, equity and the right to be heard.
(c) That the Ld. ACMM had passed the order of dismissal without going into the merits of the application in a superficial manner and on technical grounds. Further, the conduct of the counsel to rectify the inadvertent error and appearing in the Court on the incorrect date substantiate the claim of the revisionist.
(d) That the ld. ACMM erred in not conceiving the substantial gravity of the application, which was to highlight the offences committed by the complainant therein and its Directors affecting the administration of justice.
Despite the fact that the application disclosed allegations of serious nature, it was dismissed for non-prosecution on the very first date of hearing for the application. The nature of accusation was overlooked by the Ld. ACMM which attracted an inquiry and warranted disposal on merits.
(e) That the Ld. ACMM acted in a hasty manner in dismissing the application which otherwise must have been dealt with upon merits due to its serious nature.
(f) That the Ld. ACMM erred in appreciating the fact that procedure is the handmaiden of justice and it is to be followed to the extent that it facilitates the proceeding to get appropriate justice, rather than overriding the same.
(g) That if the application is not heard on merits and the revisionist is not heard on the application, grave irreparable injustice will be caused to the revisionist.
4. On the contrary, it is vehemently argued by Ld. Addl. PP for the State that the present revision petition is not maintainable as the impugned order is purely interlocutory in nature. It is further submitted that reason cited by the Ld. Counsel for the revisionist are frivolous and Ld. Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 3 of 8 Trial Court has no option but to dismiss the application of the revisionist in default for non-appearance as revisionist has constantly remained absent.
5. Ld. Counsel for the respondent no.2 vehemently opposed the revision petition on the ground that the present revision petition is not maintainable and the only remedy available with the revisionist is U/s 482 Cr.PC. It is further submitted that in the garb of the instant revision petition, revisionist infact intends to seek setting aside of the order dt. 01.07.2019, which infact is now time bared. And thus, relief prayed by the revisionist cannot be granted to him and therefore, revision petition of the revisionist deserves to be dismissed.
6. Before deciding the present revision petition, it would be relevant to reproduce the relevant provision of law which 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 examine the record of any proceeding before any inferior Criminal Court situated within its or his local jurisdiction for the purpose of satisfying itself or himself; 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 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 Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 4 of 8 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. I have heard and considered the submissions made by Ld. Counsel for revisionist and also Ld. Addl. PP for State/respondent no.1 and Ld. Counsel for respondent no.2 and also gone through the material available on record.
8. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
9. Hon'ble Apex Court in the case of Amar Nath v. State of Haryana, (1977) 4 SCC 137 interpreting the provisions of Section 397(2) of Cr.P.C. held as under:-
"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 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."
10. Evidently, any order which substantially affects the right of the parties, or decides certain rights of the parties cannot be said to be an interlocutory order. In the case at hand, grievance of the revisionist would be laid to rest for forever without adjudication, if the restoration application Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 5 of 8 is disposed off on account of non-appearance. And therefore, an order leading to disposal of the issue cannot be said to be interlocutory order. Thus, in light of the aforesaid observations in the Judgment of Amar Nath (Supra), it cannot be contended that the instant revision is not maintainable.
11. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
12. It is a sacrosanct principle of law that the matter ought to be decided on merits rather than on mere technicalities. For the lapse of the counsel, party should not be made to suffer. Hon'ble Apex Court in the matter of Md. Sukur Ali v. State of Assam [AIR 2011 SC 1222] has observed as under :-
"22. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as Amicus Curiae and decide the case after fixing another date and hearing him".
13. Further, Hon'ble Delhi High Court in the matter of Manisha Trading Pvt Ltd Vs. State & others, 2001 CriLJ 2718, in a similar situation, has observed as under:-
"8. In view of the pleas raised by learned Counsel for the petitioner and the facts and circumstances of the case this Court is of the considered view that the default in appearance of the complainant on 20.10.2000 was primarily on account of the wrong noting of the date only. The brief order passed by learned Trial Court on exemption application of petitioner on 06.07.2000 shows that on the said date learned counsel for the petitioner had attended the Court proceedings at same stage. As such there are good and sufficient reasons for setting aside the impugned order of dismissal of the complaint.
Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 6 of 8
9. Accordingly the impugned order dated 20.10.2000 is set aside and complaint No.395/97 is restored to its original number with the directions that the matter be proceeded further in accordance with law".
14. Therefore, in my considered opinion ends of justice would stand defeated in case if revisionist is denied an opportunity to seek redressal of his grievances before a Court of law, merely on account of fault or lapses of his counsel. Thus, propriety demands that the Revisionist must be provided an opportunity to seek disposal of his application dated 30.07.2019 on merits. In my considered opinion, order dt. 30.09.2019 is not sustainable in the eyes of the law. The same is accordingly set aside.
15. Having observed that, I cannot but disagree with the Ld. Counsel for the revisionist that setting aside of the order dated 30.09.2020 would automatically lead to restoration of his application under Section 340 CrPC, for that would tantamount to placing the cart before the horse. By way of the impugned order dated 30.09.2020, Ld. Trial court has dismissed the restoration application dated 30.07.2019, which now stands revived by the instant order. The application dated 30.07.2019 is yet to be adjudicated upon by the Ld. Trial Court and it is not legally permissible for this Court under revisional powers, to usurp the powers of the Ld. Trial Court to deal with the application pending before it.
16. Accordingly, Ld. Trial Court is requested to consider the application dt. 30.07.2019 of the revisionist for disposal on its merits. The revision petition is accordingly disposed off.
17. Copy of this order be also sent to the Court concerned as necessary information along with the trial court record.
18. Copy of the order be given dasti to the concerned parties. Copy of the order be also uploaded upon the Court's website. Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 7 of 8
19. File of the revision petition be consigned to the Record Room.
Announced in the open court On 21st September 2020. ( Dharmender Rana) ASJ-02/NDD/PHC/ND Vikas Promoters Pvt Ltd & Ors Vs. Mahajan Promoters & Developers Pvt Ltd CR No. 134/2019 Page no. 8 of 8