Delhi District Court
Akhileshwar Dayal Bhargava vs State on 28 March, 2016
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0086142016
Criminal Revision Number : 23/2/16
FIR No. : 257/96
U/s : 420 IPC
PS : Tilak Marg
Akhileshwar Dayal Bhargava
R/o A7, Sector50.
Noida, Uttar Pradesh. ...Revisionist
versus
State ...Respondent
Date of receipt of file in this Court : 23.03.2016
Date when arguments were heard : 28.03.2016
Date of order : 28.03.2016
CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 1 of 9
ORDER
1 The present revision is directed against the impugned order dated 09.03.2016 of Ms. Snigdha Sarvaria, Ld. MM, Patiala House Courts, New Delhi in the proceedings arising out of FIR No. 257/96, PS Tilak Marg in the matter titled as State Vs A D Bhargava, u/s 420 IPC wherein the Ld. Trial court allowed the application of the State/respondent u/s 311 CrPC recalling PW2 Hemant Jayanti Lal Joshi, PW4 P D Pant and PW6 Inspector Ram Singh Dogra for their cross examination by the accused subject to the condition that only two opportunities would be given to the prosecution for evidence. 2 I have heard the rival submissions on behalf of Ld. Counsel for revisionist/accused and Ld. Addl. PP for the State/respondent and have also carefully perused the record including trial court record. 3 Ld. Counsel for revisionist argued that the application of the State u/s 311 CrPC was only a hand written application and did not cite any reason or necessity for recalling PW2, PW4 and PW6 and that too after the lapse of a very long time. He contended that the matter was fixed for final arguments and was adjourned on several dates and only on 05.12.2015 thereafter the application u/s 311 CrPC was filed on behalf of the State. He submitted that PW2, PW4 and PW6 were examined in the year 2001, 2002 and 2006 CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 2 of 9 respectively, the trial of the case began in 1996 and it took about 19 years to reach the stage of judgment and now the said application u/s 311 CrPC at the stage of judgment was only a delaying tactic to the prejudice of the accused. He argued that on 29.03.2014 after giving sufficient opportunities, the prosecution evidence was closed and the defence evidence was also closed on 17.09.2014 after examining DW1 when the case was fixed for final arguments. He argued that on 05.11.2014 the final arguments were also heard and the case was fixed for judgment, however, the said application u/s 311 CrPC was moved on 05.12.2015 all of a sudden for recalling of the witnesses just to prolong the trial. He also argued that the Ld. Trial court based the impugned order on a wrong premises by mentioning that PW2 and PW6 were not recalled for their further cross examination and cross examination after 2002 and 2006 respectively, however, he by referring to order sheet dated 21.08.2008 argued that PW2 and PW6 were summoned for 19.01.2009. He submitted that due to lapses on behalf of prosecution, the accused cannot be made to suffer. He contended that recalling of the witnesses at the stage of judgment would tantamount to opening up of the trial again to the disadvantage of the revisionist/accused. He also argued that an application for recall of witness filed after a lapse of one year should not be allowed. He submitted that the recall of CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 3 of 9 a witness u/s 311 CrPC has to be exercised on a broad principle that the same should be necessary to meet the ends of justice and if not permitted, may lead to injustice and the said discretionary power has to be exercised judiciously and not arbitrarily. He further argued that the present revision petition is maintainable as the impugned order is not an interlocutory order but finally decides the rights of the parties. He also referred to the following judgments:
1. Nisar Khan Vs State of Uttaranchal, (2006) 9 SCC 386;
2. Order dated 20.02.2008 of Hon'ble Delhi High Court in Crl. MC 8479/2006 in matter titled as Raminder Singh Vs State and
3. Acura Glass Tiles Enterprises Vs S S Ray, 218 (2015) DLT 238. 4 On the other hand, the Ld. Addl. PP for the State/respondent argued that the present revision petition was itself not maintainable as the order deciding application u/s 311 CrPC is interlocutory in nature. In this regard, he referred to the following judgments:
(i) Sethuraman Vs Rajamanickam (2009) 5 SCC 153;
(ii) Anil Kumar Vs Sunita & Ors., Criminal Appeal No. 774/2011, decided on 19.02.2013 by Hon'ble Delhi High Court and
(iii)Kaushalya Rani Vs Municipal Corporation of Delhi, 79 (1999) DLT 709, decided on 01.05.1999.
CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 4 of 9 He argued that even otherwise, Ld. Trial court has committed no illegality or infirmity in the impugned order as PW2, PW4 and PW6 are material witnesses, however, their testimony could not be completed which was very essential to arrive at a just decision of the case. He argued that PW2 and PW4 were only partly cross examined by Ld. Defence counsel during the trial of the case, whereas, PW6 could not be even tendered for cross examination on behalf of the accused.
5 The factual matrix of the case shows that the charge u/s 420 IPC was framed against the revisionist / accused by the Ld. Trial court on 02.06.1998 to the effect that on March 1995 and later on at B602, Sangli Apartments, Copernicus Marg within the jurisdiction of PS Tilak Marg, he along with his brother Commander T K Bhargava (since expired) had cheated Hemant Joshi (PW2) proprietor of Hem Enterprises and persuaded him to enter into contract for the supply of 2500 MT of carbon steel plates which shipment was to come from Ukraine and thereby dishonestly induced him to pay Rs 8 lacs by way of demand draft to him and delivered fake shipment documents to him whereas the said carbon steel plates were neither supplied to the complainant nor shipped from Ukraine to Bombay and he thereby committed an offence punishable u/s 420 IPC. The accused/revisionist pleaded not guilty and CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 5 of 9 claimed trial.
6 As per record, after giving various opportunities and examination of eight prosecution witnesses, the prosecution evidence was closed on 29.03.2014. The statement of accused u/s 313 CrPC was recorded on 21.05.2014. DW1 was examined on 17.09.2014, defence evidence was closed and case was fixed for final arguments on 17.09.2014 itself. On 05.11.2014 the final arguments were heard by the Ld. Trial court and case was fixed for orders. The matter thereafter kept on lingering and even written synopsis were filed on behalf of accused/revisionist. The case continued to be fixed for final arguments and in the meanwhile an application u/s 311 CrPC was filed on behalf of State for recalling PW2, PW4 and PW6 for their further examination which was allowed by the Ld. Trial court vide impugned order dated 09.03.2016 subject to the condition that only two opportunities shall be given to the prosecution. 7 As per record, PW2 Sh Hemant Jayanti Lal Joshi is a material witness being the complainant of the case and has been partly cross examined by Ld. Defence counsel on 18.03.2002 and his further cross examination was deferred as he had to catch the train. PW4 Sh P D Pant is also a material public witness and was only partly cross examined by the Ld. Defence counsel on 19.03.2002. PW6 Inspector Ran Singh Dogra was examined in chief on 31.01.2006 and his CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 6 of 9 cross examination was deferred. He also seems to be a material witness of the prosecution.
8 Ld. Trial court in the impugned order has inter alia mentioned that considering that PW2, PW4 and PW6 are material witnesses and their evidence is essential for reaching a just decision in this case, therefore, there is sufficient material on record to exercise power u/s 311 CrPC. The Ld. Trial court also held that it was apparent that there had been occasions when witnesses were present but accused was absent or Ld. Counsel for the accused had sought time for cross examining the witnesses and hence accused could not take benefit of the same.
9 Be that as it may, at the very outset and without commenting upon the merits of the case, it is pertinent to note that now it is a well settled law that an order on application u/s 311 CrPC is interlocutory in nature and a revision against such order is barred u/s 397 (2) CrPC. My views are substantiated by the judgment of Hon'ble Supreme Court of India in case titled as Sethuraman (supra) and by the judgments of Hon'ble High Court of Delhi in cases titled as Anil Kumar (supra) and Kaushalya Rani (supra). The Hon'ble High Court of Delhi in case of Kaushalya Rani (supra) while discussing Section 311 CrPC has specifically held that allowing or disallowing an application for additional CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 7 of 9 evidence being an interlocutory order could not be challenged in revision. The Hon'ble Supreme Court of India in case of Sethuraman (supra) has inter alia held as follows:
5. Secondly, what was not realised was that the orders passed by the trial court refusing to call the documents and rejecting the application under Section 311 CrPC, were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397 (2) CrPC......................................................................................Therefor e, both the orders i.e. one on the application under Section 91 CrPC for production of documents and other on the application under Section 311 CrPC for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397 (2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed.
10 In view of the above said settled law, it is held that the impugned order dated 09.03.2016 vide which the application of State/respondent u/s 311 CrPC for recalling PW2, PW4 and PW6 was allowed was the order of interlocutory nature, in which case, the revision petition is not maintainable u/s 397 (2) CrPC. There can be no doubt over the law as laid down in the judgments as relied upon by the Ld. Counsel for revisionist but they are distinguishable on CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 8 of 9 the facts of the present case and will not help the revisionist because as discussed above, it is now a settled law that the revision petition itself is not maintainable against an order on application u/s 311 CrPC. 11 Keeping in view the above said discussion, the present revision petition is dismissed being not maintainable and barred u/s 397 (2) CrPC. 12 The revision petition is dismissed accordingly.
13 Trial Court Record be sent back to the concerned Trial Court along with copy of this order.
14 Revision file be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 28.03.2016 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE04
PATIALA HOUSE COURTS/NEW DELHI
CR No. 23/2/16 FIR No. 257/96 PS Tilak Marg A D Bhargava Vs State Page 9 of 9