Delhi District Court
Rahul Anand Joshua vs Nashim Akhtar on 26 November, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. Rev No.479/2024
CNR No. DLST01-012568-2024
Rahul Anand Joshua
S/o sh. Dender Kuanr Joshua
R/o House no. 41, Ward No. 1,
Mehrauli New Delhi-110030 ......... REVISIONIST
VERSUS
Nashim Akhtar
S/o Sh. Abdul Hafiz
R/o 8-C/3, Hauz Rani , Malviya Nagar,
New Delhi-110017 ......RESPONDENT
DATE OF INSTITUTION : 26.10.2024
ARGUMENTS HEARD ON : 26.11.2024
DATE OF JUDGMENT : 26.11.2024
JUDGMENT
1. The present criminal revision has been filed by the revisionist for setting aside the order dated 19.09.2024, passed by Ld. JMFC, South, District, Saket Court, New Delhi in case bearing no. 43589/2019 u/s 138 NI Act titled as Nashim Akhtar Vs. Rahul Anand Joshua.
2. Facts in brief of the revision are that the above said complaint case u/s 138 NI Act was filed in the year 2019 by the complainant, in which the revisionist was convicted vide judgement dated 23.09.2023 and was sentenced by order on sentence dated 08.11.2023. Thereafter, revisionist filed an appeal against the said judgment and order on sentence before the appellate court. The appellate court PURSHOTTAM PATHAK upheld the judgement and by modifying the sentence Digitally signed by directed the appellant to pay the remaining part of PURSHOTTAM PATHAK Date: 2024.11.26 17:56:47 +0530 compensation, out of total compensation amount of Rs.
Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 1 of 8 1,36,000/ , within 30 days. Appellant was further directed to surrender before the Ld. Trial court after expiry of 30 days, if he fails to deposit the remaining amount of compensation, so as to suffer the sentence of simple imprisonment of one month in default of payment. However, the convict did not surrender before the Trial court after expiry of 30 days. Instead, he moved an application for payment of said fine and furnished a DD bearing no. 013253 in favour of complainant for an amount of Rs. 1,08,800/- and said DD was directed to be released in favour of complainant. Further, the convict was directed to deposit a fresh DD for a sum of Rs. 27,200/- in favour of complainant as the DD of Rs. 27,200/- furnished by convict on 08.12.2023 had expired. The Ld. Trial court also, considering the conduct of revisionist that he has left the court without leave of court, issued NBWs against the revisionist. Thereafter the revisionist moved an application for cancellation of NBWs which was dismissed, vide order dated 08.11.2024.
3. Being aggrieved by the order dated 19.09.2024 the revisionist has preferred this revision petition.
4. I have heard the rival submissions advanced by counsels for both the parties and also perused the trial court record.
5. Ld. counsel appearing for the revisionist argued that the said NBWs had been issued in an illegal manner by Ld. magistrate though, the revisionist was present in the court Digitally through VC and his presence to that effect has been signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.11.26 17:56:51 +0530 marked in the order sheet. Ld. Counsel submitted that no Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 2 of 8 judicial mind was applied before passing of the impugned order of issuing NBWs and such order which has been passed without applying the judicial mind is liable to be set aside. He further argued that the impugned order cannot be termed as interlocutory order as it has affected the rights of accused/ revisionist because NBWs have been issued against him by the Trial Court.
6. Per contra, Ld. counsel appearing for respondent refuted the said contentions by arguing that the present criminal revision has been filed in order to avoid the payment of fine amount. He also submitted that there is no infirmity in the impugned order and therefore the present revision petition is liable to be dismissed. He argued that the present revision is not maintainable as the same has been filed against an interlocutory order.
7. At the outset, since the revisionist is claiming that the present revision is not against the interlocutory order whereas, the respondent is claiming that the order dated 19.09.2024 is in fact interlocutory order and therefore, revision is not maintainable. It is imperative that before proceeding to decide the revision on merits it is to be examined whether the order dated 19.09.2024 is interlocutory order or not.
8. The essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the case or collateral to the issue sought but not a final decision or judgment on the matter in issue. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK
9. Section 397 (2) Cr.P.C. provides that the power of PATHAK Date:
2024.11.26 17:56:55 +0530 revision conferred by sub-section 1 of Section 397 of Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 3 of 8 Cr.P.C. shall not be exercised in relation to an interlocutory order passed in any appeal, inquiry, trial or any other proceedings. Thus, it is an undisputed legal position that a revision petition is not maintainable against an interlocutory order at all.
10. Halsbury's Law of England Volume 22 of the Third Edition at Page 743−744 describes "Interlocutory and Final Order" thus:− "An order which does not deal with the final rights of the parties, but either i. is made before judgment, and gives no final decision on the matter and dispute but is merely on a matter of procedure or ii. is made after judgment and merely directs however declarations of right already given in the final judgment are to be worked out is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals an Interlocutory Order, though not conclusive of the main dispute, may be conclusive to be a subordinate matter with which it deals."
11.In book Corpus Juris Secundum, Vol. 47 Page 85, the term "interlocutory order" has been defined as under:− "something intervening between commencement at the end of a suit which decides some point or matter but which is not a final decision of the whole controversy".The Webster's Third International Dictionary defines the expression "interlocutory" as "not final or definite; made or done during the progress of an action, intermediate, provisional."
12. Final judgments are such as to once put an end to the action by declaring that the plaintiff has either entitled himself. or has not, to recover the remedy he sues for. Four different tests for ascertaining the finality of a judgment or order have been suggested :(1) Was the order made upon Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK an application such that a decision in favour of either party PATHAK Date:
2024.11.26 17:57:00 +0530 would determine the main dispute; (2) Was it made upon Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 4 of 8 an application upon which the main dispute could have been decided; (3) Does the order, as made, determine the dispute; (4) If the order in question is reversed, would the action have to go on."
13. For deciding, what constitutes an interlocutory order, a test has been laid down in S. Kappuswami Rao Vs. The King, AIR 1949 F.C. 1, wherein it was observed as under:− "To constitute a final order, it is not sufficient merely to decide an important or even vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way."
14. In the case titled as "Amarnath & Ors Vs. State of Haryana" reported at AIR 1977 SC 2185, while discussing the term 'interlocutory order', Hon'ble Supreme Court observed as under :-
"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 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 the order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397. 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). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial can not be said to be an interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."
15. In another case titled as "Central Bank of India Vs. Gokal Chand" reported at AIR 1967 SC 799, Hon'ble PURSHOTTAM PATHAK Supreme Court held as under:
Digitally signed by"............ orders regarding the summoning of witnesses, discovery, PURSHOTTAM production and inspection of documents, issue of commission for PATHAK Date: 2024.11.26 17:57:03 +0530 Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 5 of 8 examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document on the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceedings. They regulate the procedure only and do not affect any right or liability of the parties."
16. In case titled, "Poonam Chand Jain Vs. Fazru", reported at AIR 2005 SC 38, Hon'ble Supreme Court observed:
"Wharton's Law Lexican 14th Edition Page 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 parties.
".......... summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only in interlocutory order. In other words, in ordinary sense of the term, the interlocutory order is one which only decides a particular aspect or a particular issue or a particular manner in a proceeding, suit or trial but which does not however conclude the term at all. "
17. It is a settled legal proposition that even an order of taking cognizance (B.S.Rao Vs. T.V. Sharma 1976 Crl. LJ
902), granting bail (Neelu Vs. State , 1983 Crl.LJ 1590) or canceling a bail (Bhola Vs. State 1979 Crl.LJ 718) too are interlocutory orders.
18. In case titled Kajal Sengupta Vs. M/s Ahlcon Ready Mix Concrete, Cr.MC 1640/2011 dated 18.5.2011 it has been observed by Hon'ble Delhi High Court that :
"There can not be any dispute that the order granting exemption was nothing but an interlocutory one and so was the order of revocation of the exemption granted. Such orders do not determine the rights of the parties finally but are of interim nature passed during the proceedings of trial."
19. In another case titled, "Prem Bakshi Vs. Dharam Dev" AIR 2002 SC 559, Hon'ble Supreme Court Digitally deprecated practice of interference adopted by Superior signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.11.26 17:57:07 +0530 Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 6 of 8 Courts with each and every interlocutory order passed by Ld. Trial Court which results in delaying the trail.
20. In a case titled D.N.Sood Vs. Inspecting Asstt.
Commissioner of Income Tax, 105 (2003) DLT 33, Hon'ble High Court has also observed that " The purpose of proceeding under Section 82/83 Cr.P.C. is simply to secure the presence of the petitioner before the Court."
21. In case title S.K. Bhatt Vs. State (2005) 3 SCC 634, Hon'ble Supreme Court held, "Section 397(2) bars revision against interlocutory order."
22. Appreciating the facts of this case, statues and in the backdrop of the above case laws, it is evident that coercive process issued by Ld. Trial Court is purely interlocutory order. Likewise the order passed on the application seeking stay/cancellation of NBW is also interlocutory in so far as no right of accused pertaining to trial has been decided therein.
23. In the instant matters, Ld Trial Court has directed for issuance of NBWs against the revisionist which is under challenge before this Court. Same does not affect any right of the revisionist in any manner as only the coercive process is shown to have been issued against him in order to secure his presence.
24. In the aforesaid facts and circumstances, I do not agree with the submission made by Ld. counsel of revisionist that impugned order has affected the right of revisionist in any manner or it has the effect of extinguishing the right of accused/revisionist by any Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
stretch of imagination.
2024.11.26 17:57:11 +0530 Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 7 of 8
25. Reliance is placed upon judgment of Hon'ble Allahabad High Court in case Hira Lal v. State of U.P. & Anr. 2008 CRI. L.J. 113, wherein it was held that :-
"So far as the impugned order dated 24/28-10-2003 issuing non- bailable warrants against the accused persons named in the charge sheet is concerned, revision against that order is not maintainable, because the order issuing non- bailable warrant comes in the category "interlocutory order" within the meaning of Section 397 (2) Cr. P.C. This Court in the case of Mohd. Usman v. State of U.P. (2000 (40) ACC 901), has held that issuing of non-bailable warrant is purely interlocutory order, revision against which is not maintainable."
26. In the present case, Ld. Trial Court vide impugned order dated 19.09.2024 issued NBWs against the revisionist. The impugned orders do not terminate the proceedings. It is clear that the impugned order is merely procedural order and therefore falls within the category of interlocutory order.
27. In view of above observations, I am of the considered opinion that the impugned order is purely interlocutory in nature and thereby attracting the bar of Section 397(2) Cr.P.C. Consequently, instant revision petition is hereby dismissed.
28. In view of the aforesaid, the revision petition is disposed off.
29. TCR alongwith a copy of this judgment be sent to the Ld. Trial Court.
30. The revision file be consigned to the Record Room after due compliance.
Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK
PATHAK Date: 2024.11.26
17:57:15 +0530
ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK)
TODAY ON THIS ASJ-05(SOUTH)
26th DAY OF NOVEMBER, 2024 SAKET COURTS: N.D
(This judgment contains total 8 signed pages) Cr. No. 479/2014 Rahul Anand Joshua Vs. Nashim Akhtar Page No. 8 of 8