Delhi District Court
Govind Narain Johari vs . State Of Nct Of Delhi on 17 February, 2021
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURT, NEW DELHI
I. CR. NO. 291/2020
GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI
Sh. Govind Narain Johari .......... Revisionist/Accused
Versus
State of NCT of Delhi .......... Respondent
II. CR. NO. 292/2020
GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI
Sh. Govind Narain Johari .......... Revisionist/Accused
Versus
State of NCT of Delhi .......... Respondent
First date before this Court: 17.11.2020
Date of Decision: 17.02.2021
COMMON ORDER :
1. Vide this common order I shall decide both the Revision Petitions under Section 397 Cr. P. C. filed by the Revisionist/ Accused against the order dated 17.09.2020 and 05.10.2020 vide which the Ld. Chief Metropolitan Magistrate has directed/allowed renewal of passport of the Revisionist/Accused for three years.
2. It is submitted in the Revision Petitions that the complainant had been purchasing high value jewellery from the Revisionist/Accused a jeweller having establishment in Jaipur, Rajasthan since 1999. An CR NO. 291/2020 & CR NO. 292/2020 Page No. 1 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI FIR was registered against the Revisionist/Accused on 15.11.2011. The charge was framed against the Revisionist/Accused on 12.01.2018 and the trial commenced. While the proceedings were going on, the matter was settled with the complainant for return of the jewellery and settlement of accounts by making payments. The bail of the Revisionist/Accused was confirmed vide order dated 27.06.2012 with the condition that he would inform the Court if he undertook any foreign visits and would also share his travel itinerary. The Revisionist/Accused has travelled abroad numerous times and has religiously followed the conditions of the bail.
3. The passport of the Revisionist/Accused expired in April, 2020. An application was filed before the Ld. Chief Metropolitan Magistrate for giving No Objection Certificate for issuance of new passport. Ld. Chief Metropolitan Magistrate vide order dated 20.07.2020 allowed the renewal of passport of the Revisionist/Accused. However, an objection was taken by the Regional Passport Office (RPO) that the period of renewal/issuance of passport had not been specified by the Court. Consequently, an application was filed before the Ld. Chief Metropolitan Magistrate who vide order dated 17.09.2020 directed for renewal of passport for a period of three years. Aggrieved by the said order, present revision has been filed.
4. This order has been challenged on the ground that issuance of NOC for a period of three years amounts to imposition of fresh conditions which were not imposed at the time of grant of bail. The passport having limited period of validity are issued in cases where the CR NO. 291/2020 & CR NO. 292/2020 Page No. 2 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI serious offences have been alleged. The present case in fact is a dispute of civil nature which has been converted into a criminal one by the complainant by using her high position in the society. The limited period of validity of the passport would create hurdles in obtaining visa of various countries. Moreover, unnecessary cost would have to be incurred in obtaining visa after expiry of passport. Moreover, Ld. Chief Metropolitan Magistrate has failed to give any reason as to why a period of three years has been allowed. It is a non-speaking order bereft of any reasons. A prayer is therefore made that the conditions of renewal of passport of three years may be removed and NOC may be issued for the entire period of ten years as permitted by the Rules.
5. Ld. Counsel for the Revisionist/Accused has argued that once the party had approached the Court under Clause (i), then the Court was necessarily required to specify the period for renewal and it should have been allowed for the entire permissible period. Clause (ii) can be invoked only when the Court has not been approached and the Revisionist/Accused directly approaches the Passport Authority without the intervention of the Court. The impugned order dated 05.10.2020 does not disclose why the renewal of No Objection Certificate has been granted for three years especially considering that the Revisionist has been facing trial since last ten years and has never misused his passport and has strictly complied with the directions of the court. Moreover, the only condition imposed at the time of bail was that he shall inform the Court before travelling CR NO. 291/2020 & CR NO. 292/2020 Page No. 3 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI abroad. He has never ever misused or abused the liberty so granted and there is no impediment as to why the renewal cannot be effected for the entire permissible period as per rules of the Passport Act. Imposition of this limitation amounts to new conditions to bail which is beyond the domain of this court. Moreover, it impinges on the fundamental right of freedom of movement and this limitation of three years is violative of his constitutional right.
6. Ld. Counsel for the Respondent/complainant has taken a preliminary objection that this impugned order is interlocutory in nature against which the Revision Petition is not maintainable for which reliance has been placed on Madhu Limaye vs. The State of Maharashtra, AIR 1978 SC 47; Ripen Kumar vs. Department of Customs (2001) Crl. J 2188; Amarnath vs. State of Haryana & Others (1977) 4 SCC 137; Madhu Limaye vs. The State of Maharashtra (1977) 4 SCC 551 and V. C. Shukla vs. The State through CBI (1980) SCC Crl. 695. It is also argued that once the duration for renewal was not specified then the renewal could have been only for one year as provided in clause (ii) while the Ld. CMM has shown indulgence by allowing three years. The revision has no merit and is liable to be dismissed.
7. I have heard the arguments and perused the record. My observations are as under:
8. The controversy in the present Revision Petition involves around the order of Ld. Chief Metropolitan Magistrate permitting/granting the "No Objection Certificate" for renewal of the passport for three CR NO. 291/2020 & CR NO. 292/2020 Page No. 4 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI years was justified and based on reasons. The jurisdictional issue raised by the respondent is that it is an interlocutory order against which the revision is not maintainable.
9. Before going into the merits of the case, the preliminary objection in regard to maintainability of the Revision claiming the impugned order to be interlocutory, needs to be addressed for which it would be worth the while to first understand the term "interlocutory". Section 397 Cr. P. C. 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 jurisdiction or law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law and the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. Therefore, the widest possible powers of revision with no restrictions and limitations had been given to the High Court under Sections 435 and 439 respectively of the Code of Criminal Procedure, 1898 and 1955 (Amendment), to examine the propriety of any order-whether final or interlocutory-passed by any Subordinate Court in a criminal matter. But by a long course of decisions of Apex Court and High Courts the exercise of revisional powers has got confined only to cases where the impugned order suffered from any error of law or any legal infirmity causing CR NO. 291/2020 & CR NO. 292/2020 Page No. 5 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI injustice or prejudice to the accused or was manifestly foolish or perverse. These restrictions were placed merely as a rule of prudence rather than a rule of law and in suitable cases the High Courts had the undoubted power to interfere with the impugned order even on facts.
10.In Amit Kapoor vs. Ramesh Chander & Another, MANU/SC/ 0746/2012 the Hon'ble Apex Court explained that the well accepted law is that the revisional jurisdiction is limited one and cannot be exercised in a routine manner. One of the inbuilt restriction is that it cannot be exercised against the interim or interlocutory order.
11.The concept of an interlocutory order qua the revisional jurisdiction of the High Court, was completely foreign to the earlier Code. Subsequently, the Courts got flooded with revisions of all kinds against interim or interlocutory orders which led to enormous delay in the disposal of cases causing harassment to the accused by unnecessarily protracting the trials. In this background the Law Commission in the 14th and 41st Reports made recommendations which formed the basis of the 1973 Code. The objectives of the
12.Amendments were:
(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and CR NO. 291/2020 & CR NO. 292/2020 Page No. 6 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI
(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community."
13.Section 397 (2) was thus, incorporated in the 1973 Code with the avowed purpose of cutting out delays and ensuring that the accused persons got a fair trial without much delay and the procedure was not made complicated. This has however, led to another conundrum of determining which orders would qualify as interlocutory.
14.The Apex Court in Amar Nath and Ors. Vs. State of Haryana and Anr. AIR 1977 SC 2185 observed that the main question which falls for determination 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 diffident. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. The term "interlocutory order" 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 affect the right of the accused or decides certain rights of the parties which would invite the bar of exercise of revisional powers under Section 397 (2) of the CR NO. 291/2020 & CR NO. 292/2020 Page No. 7 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI 1973 CPC. 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, 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 court.
15.In Central Bank of India vs. Gokal Chand A.I.R. 1967 S.C. 799, 800 Hon'ble Apex Court while describing the incidents of an interlocutory order, observed that in a pending proceeding the Controller, may pass many interlocutory orders under Sections 36 & 37 regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or 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 proceeding; they regulate the procedure only 'and do not affect any right or liability of the parties.
16.This aspect of import and meaning of interlocutory orders was again considered by the Apex Court in the celebrated judgment of Madhu CR NO. 291/2020 & CR NO. 292/2020 Page No. 8 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI Limaye vs. The State of Maharashtra, AIR 1978 SC 47 wherein it was observed as under:
"13. Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term final order. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:
... a Judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to particle. The meaning of two words must therefore be considered separately in relation to the particular purpose for which it is required.
In para 1607 it is said:
In general a Judgment or order which determines the principal matter in question is termed "final".
In para 1608 at pages 744 and 745 we find the words:
An order which does not deal with the final rights of the parties, but either (1) is made before Judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after Judgment and merely directs how the declarations of right already given in the final judgment are to be CR NO. 291/2020 & CR NO. 292/2020 Page No. 9 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI 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."
17.After making reference to Amaranth's case (supra) it was observed:
"In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (Supra), but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397 (2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, CR NO. 291/2020 & CR NO. 292/2020 Page No. 10 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases."
18.Having explained the concept of interlocutory order, the facts involved in the present case need to be considered.
19.The Revisionist/Accused herein has been facing trial under Section 420 IPC for last about 10 years. His passport expired during the trial and he moved an application for No Objection Certificate for renewal of passport in accordance with Memorandum No. VI/401/ 1/5/2019 dated 10.10.2019 of Government of India.
20.The relevant Section is Section 2 (a) which provides as under:
1. For the period specified in order of the Court referred to above, if the Court specifies a period for which the passport has to be issued; or
2. If no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period of one year.
21.The entire controversy is around these two sub sections the gist of which is that if a person is facing trial, then his passport may be renewed for the period specified by the Court and if no period is specified then for period of one year.
22.Ld. Chief Metropolitan Magistrate vide order dated 17.09.2020 permitted renewal of the passport as per the Rules. However, objection was taken by the Passport Authority that the period has CR NO. 291/2020 & CR NO. 292/2020 Page No. 11 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI not been specified by the Ld. Chief Metropolitan Magistrate. Accordingly, an application for clarification was filed in which the Court vide order dated 05.10.2020 permitted for renewal of the passport for three years.
23.The impugned order essentially deals with the procedure and is a miscellaneous proceeding which is not connected in any way with different stages of trial. There is no final determination of any right as after the expiry of three years the accused can again approach the court for grant of No Objection Certificate. It cannot be overlooked that it is a case of cheating which has been pending trial for about 10 years and the parties had even entered into a compromise at one point. In the circumstances the trial may even get concluded before then. The impugned order can neither be termed as an order of moment or an intermediate order but is clearly an interlocutory order against which Revision is not allowed under Section 397 (2) Cr. P. C.
24.The Revision Petitions are, therefore, not maintainable and are hereby dismissed.
25.Trial Court Record be sent back along with a copy of this order.
26.Revision Petition files be consigned to Record Room.
Announced in the open court (NEENA BANSAL KRISHNA) on 17.02.2021 Principal District & Sessions Judge, South East, Saket Courts, New Delhi CR NO. 291/2020 & CR NO. 292/2020 Page No. 12 of 12 GOVIND NARAIN JOHARI VS. STATE OF NCT OF DELHI