Delhi District Court
Sachin Singh vs Vinod Kumar Badalia on 14 November, 2022
IN THE COURT OF HEM RAJ ADDITIONAL SESSIONS JUDGE-08
WEST DISTRICT: TIS HAZARI COURTS : DELHI
CNR NO.DLWT01-005125-2022
Criminal Revision No. 136/2022
Sachin Singh Vs Vinod Kumar Badalia
In the matter of :
Sachin Singh
S/o Chatar Pal Singh
R/o H. No. 231/6, Civil Lines North-2
` PS Civil Lines, Tehsil Muzaffar Nagar
Dist. Muzaffar Nagar, Uttar Pradesh
Also at:
4/276, 3rd Floor, Subhash Nagar,
New Delhi, 110027
..... Revisionist
Versus
Vinod Kumar Badalia
S/o Amar Singh
R/o M-63, Hari Nagar Clock Tower,
New Delhi- 110063
.... Respondent
Instituted on : 31.05.2022
Reserved on : 27.10.2022
Pronounced on : 14.11.2022
ORDER
1. The present criminal revision petition filed under section 397/399 Cr.P.C. challenges the order dated 02.05.2022 (im-
Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 1/11pugned order) of the Ld. MM (West), Tis Hazari Court, Delhi, whereby the Ld. MM (West) closed the right of the revisionist/accused to cross-examine the complainant and also issued non bailable warrant against him.
2. The grounds of challenge the impugned order as men- tioned in the revision petition are as under :-
A. The Ld. MM has committed a grave legal impropriety by closing the opportunity of the revisionist to cross-ex- amine the complainant in haste as the right to cross-ex- amine the witness is an essential and valuable right of a party.
B. The Ld. MM ignored the fact that Ms. Charan Sal- wan before whom the matter was listed on 02.05.2022 was shown to be on leave as per the website of District Courts and counsel for accused being busy in another court, was not available and thus his absence was bonafide.
C. The Ld. MM ignored the fact that on the date of im- pugned order, complainant was not present and the Ld. Counsel for revisionist had offered to to cross-examine the complainant at 2 p.m, which was not allowed.
D. The Ld. MM erred by not considering the permanent exemption application of the accused u/s 205 Cr.P.C ex- peditiously.
E. The Ld. MM again insisted on physical presence of the accused on the next date of hearing i.e. 09.06.2022 which is against the directions of the Hon'ble High Court, which has allowed hybrid hearing in the District courts as well the settled legal principle.Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 2/11
3. In support of his contentions, Ld. Counsel has relied upon following judgments:-
i) Helan Rubber Industries vs State of Kerla and Ors (1972) KLT 79411
ii) Puneet Dalmia vs Central Bureau of Investigation, Hy- derabad (16.12.2019-SC): MANI/SC1747/2019
iii) Bhaskar Industries Ltd vs Bhiwani Denim & Apparels Ltd MAU/SC/0489/2001 : (2001) 7SCC 401.
4. Ld. Counsel for revisionist has argued on the same lines of grounds taken in the revision.
5. On the other hand, Ld. Counsel for the respondent has ar- gued that the revision petition is not maintainable as the order dated 02.05.2022 is only an interlocutory order. On merits, he further argued that the complainant despite repeated opportuni- ties, did not cross examine the witness and thus, the Ld. Trial Court was justified in closing his right to cross examine the wit- ness.
6. Section 397 CrPC which deals the revisional powers of the Court reads as under:
397. Calling for records to exercise powers of revision - (1) The High Court or any Sessions Judge may call for and ex-
amine the record of any proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correct- ness, legality or propriety of any finding, sentence or order, recorded or passed, and as to be regularity of any proceed- ings of such inferior Cour, 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, Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 3/11 shall be deemed to be inferior to be 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 any 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 entitled by either of them.
7. In the judgment of Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204, the Hon'ble Supreme Court on the scope of Section 397 Cr.P.C observed as under:
"10. ....................... Section 397 of the Criminal Proce- dure Code (in short "CrPC") vests 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 in- ferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well- founded error which is to be determined on the merits of indi- vidual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings."
8. In the judgment of Amit Kapoor v. Ramesh Chan- der, (2012) 9 SCC 460 the Hon'ble Supreme Court discussed the revisional power of the court in great length. The relevant observations are reproduced as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdic- tion or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the vari- ous judgments of this Court, it emerges that the revisional ju- risdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provi- sions of law, the finding recorded is based on no evidence, ma-Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 4/11
terial evidence is ignored or judicial discretion is exercised ar- bitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."
"13. Another well-accepted norm is that the revisional juris- diction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its re- visional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
************************************************** "20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propri- ety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very founda- tion of exercise of jurisdiction under Section 397 but ulti- mately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compli- ance with the provisions of law, the decision is completely er- roneous or where the judicial discretion is exercised arbitrar- ily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section con- fers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused."
9. Further, in the judgment of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123, it was observed as under:-
Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 5/11"14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the re- port filed by the police and has passed a reasoned order hold- ing that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any rele- vant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole pur- pose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court un- der Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is ex- ercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
( Emphasis supplied)
10. I have gone through the records of the case, the order passed by learned trial court and heard both sides.
11. The impugned order of the Ld. MM can be dissected in two parts. The Ld. MM issued NBW against the revision- ist and closed his opportunity to cross examine the com- plainant. Let me first take the aspect of NBW against the present revisionist. Such order, in my considered opinion, is purely interlocutory order and therefore, the revision against that part of the impugned order is not maintainable. The re- liance is placed on the judgment of the Hon'ble Allahabad High Court in Hira Lal v. State of U.P. & Anr, 2008 CRI.L.J 113 where it is observed as under:-
"So far as the impugned order dated 24/28-10-2003 issuing non-bailable warrants against the accused persons named in Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 6/11 the charge sheet is concerned, revision against that order is not maintainable, because the order issuing non-bailable war- rant 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 warrants is purely interlocutory order, revision against which is not maintainable."
12. In view of the aforesaid observation of the Hon'ble High Court, it is clear that the impugned order is not revis- able as far as the issuance of NBW against the revisionist is concerned. Hence, the revision petition is not maintainable as far as this part of the impugned order is concerned.
13. Now remains the aspect of closing of the opportunity of the revisionist to cross-examine the complainant. The Ld. Counsel for the revisionist has argued that the said order is only an interlocutory order. However, in my opinion, sub- mission of the Ld. Counsel is not maintainable. The term in- terlocutory order admittedly has not been defined anywhere in the Cr.P.C.
14. In Amar Nath v. State of Haryana, (1977) 4 SCC, the Hon'ble Supreme Court explained the term of interlocu- tory order. The relevant observations are reproduced hereun- der:-
"6. ................The main question which falls for determi- nation in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well- known 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 Dictio- nary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocu-Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 7/11
tory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular as- pect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a re- stricted 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 or- ders 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."(Emphasis supplied)
15. In the aforesaid judgment, the Hon'ble Supreme Court has stated that any order which does not decide or touch the important right or the liability of the parties can be termed as interlocutory order. However, it is further held that order, although which are momentary to decide, effect, adjudicate rights of the accused or a particular aspect of trial, cannot be said to be interlocutory order so as to be outside the purview of the revisionisal jurisdiction. It was further held that the feasible test to decide whether an order is interlocutory or not is that whether upholding the objection raised by a party, would it result in culminating the proceedings, if so any or- der passed to said objection would not merely interlocutory in nature.
Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 8/1116. In view of the aforesaid law, it is clear that the order whereby the opportunity of the revisionist to cross-examine the complainant is not an interlocutory order, but a final or- der as it has culminated the substantiate right of the revi- sionist to cross examine the complainant. Therefore, this ob- jection is not maintainable. Accordingly the revision petition is found to be maintainable.
17. Now, it is to be seen whether the order of the Ld. MM suffers from any illegality or perversity or whether the Ld. MM has failed to exercise its discretion properly. Vide order dated 20.11.2019, Ld. MM, directed the revisionist to travel abroad. The permanent exemption application was not dis- posed off by the Ld. MM on that day and in fact the said ap- plication has still not been disposed off so far. Vide order dated 20.02.2020, the Ld. MM observed that the revisionist had undertaken to remain present before the court but he failed to appear in the court. However, there is no observa- tion in the order that on 20.11.2019, he shall appear on the next date of hearing. Thereafter, in view of the Corona out- break for sometime, file could not be taken for hearing. On 13.09.2021, the exemption application filed on behalf of the accused was also allowed. On 03.01.2022 i.e. the date previ- ous to 02.05.2022 on which date the impugned order was passed, the court was functioning through video conferenc- ing mode. It is also a known fact that courts have been working through hybrid mode where the parties are allowed to appear through Webex System whenever same is feasible Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 9/11 to them. Although the same is within the discretion of the Presiding Officer of the court. In my considered opinion, the Ld. MM should have given further chances to the revisionist to cross examine the complainant instead of closing his right especially in view of the situation prevalent during the Corona Pandemic out break. It is well settled principle of law that the parties should be promoted to fight the lis on the merit and not on the technicalities. The cross-examina- tion is a necessary tool in the hands of a party to prove its case or discredited the opponents' case. If the revisionist is not allowed to cross-examine the complainant, in my con- sidered opinion, the revisionist would have to suffer grave prejudice in his defence.
18. In view of the aforesaid discussion, the revision peti- tion is allowed viz-a-viz the order pertaining to the closing the opportunity of the revisionist to cross-examine the com- plainant. The Ld. MM is directed to give only single oppor- tunity to the revisionist to cross examine the complainant. The revisionist shall not seek any adjournment for the cross- examination of the complainant on whatsoever ground. The said opportunity shall only be available to the revisionist subject to payment of cost of Rs. 20,000/- to the com- plainant including the previous cost already imposed by the Ld. MM.
19. In view of the above observations and directions, the present revision petition stands disposed off.
Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 10/1120. Trial court record along with an attested copy of this order be sent back to trial court.
21. Parties are directed to appear before the Ld. MM on 17.11.2022 at 2 p.m.
22. Revision file be consigned to record room.
Digitally
signed by
HEM HEM RAJ
Date:
RAJ 2022.11.14
16:43:42 -
Pronounced in the open 0500
Court on 14.11.2022 (Hem Raj)
Additional Sessions Judge -08(West)
Tis Hazari Courts Delhi
Criminal Revision No. 136/2022 Sachin Singh Vs Vinod Kaumar Badalia Page 11/11