Delhi District Court
Prem Prakash vs . Nirmala Kumari on 12 December, 2018
CR/62/18
Prem Prakash Vs. Nirmala Kumari
IN THE COURT OF SHRI DEEPAK JAGOTRA,
DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CR/62/18
CNR No.DLNE010042922018
In the matter of;
Prem Prakash
S/o Shri Prabhu Lal Nayak
Permanent R/o Plot No.316,
Dadawari Vistar Yojna,
Kota, Rajasthan ..... Revisionist
Versus
Smt. Nirmala Kumari
W/o Shri Prem Prakash
D/o Late Shri Chaman Lal
R/o House No.J587, Gali No.6,
4 Pusta, Kartar Nagar,
Bhajanpura, Delhi110053 ..... Respondent
Date of Institution: 11102018 Reserved for order on:01122018 Order announced on:12122018 Page No. 1 /9 CR/62/18 Prem Prakash Vs. Nirmala Kumari O R D E R
1. By this revision petition under Section 397 Cr.P.C., revisionist has challenged the impugned order dt.02082018 passed by the Court of Ms. Richa Parihar, learned MM (Mahila Court), North East District, Karkardooma Courts, Delhi whereby the Trial Court had allowed the application under Section 311 Cr.P.C. moved on behalf of the respondent herein.
2. I have heard learned counsel for the parties and minutely gone through the record of the case.
3. Learned counsel for the revisionist has submitted that the Trial Court has wrongly exercised its jurisdiction under Section 311 Cr.P.C.. It is further submitted that the matter is pending since long and more time would be wasted in examining the witness on behalf of the petitioner/ respondent herein and prayed that this revision petition may kindly be allowed.
4. On the other hand, learned counsel for the respondent has submitted that it is an interlocutory order and hence, not revisable and Page No. 2 /9 CR/62/18 Prem Prakash Vs. Nirmala Kumari prayed for the dismissal of this revision petition.
5. At the outset, it is pointed out that as far as the question of maintainability of the revision petition is concerned to the effect that impugned order is an interlocutory order and hence, not revisable, hon'ble Supreme Court of India in a judgment titled as Sethuraman Vs. Rajamanickam reported in 2010(5) RCR (Criminal) 512 :
(2009) 5 SCC 153 has been pleased to observe as under;
".. what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C. , were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/ accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/ complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any Page No. 3 /9 CR/62/18 Prem Prakash Vs. Nirmala Kumari manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. 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."
6. From the above, it is amply clear that the application under Section 311 Cr.P.C. is an interlocutory order against which no revision petition under Section 397 Cr.P.C. before the Court would be maintainable.
7. At the same time, it would be important to refer to another authority titled as Uppal Credit and Investment Pvt. Ltd. Vs. Ashwani Kumar reported in 2016(2) RCR (Criminal) of Hon'ble Punjab and Haryana High Court wherein inter alia it has been observed as under;
Page No. 4 /9
CR/62/18 Prem Prakash Vs. Nirmala Kumari "A Single Bench view of Hon'ble Gujarat High Court in the case of 'Sheikh Madinabibi Mustafabhai v. State of Gujarat' 2005(2) GCD 1379 faced with a similar situation, after taking into consideration plethora of case law of various Courts including the Hon'ble Apex Court, has tried to transverse the meaning and the logic behind it, holding that an order under Section 311 of the Code is not an interlocutory order and that the revision is maintainable against the order passed on application under Section 311 Cr.P.C."
8. It is important to mention here that the Hon'ble High Court has also discussed about the Sethuraman judgment (Supra).
9. In view of the conflicting view, it would not be appropriate to delve on the issue of maintainability of the revision petition. Therefore, it would be proper in the interest of justice to have a look of the matter on merits and to analyze if the revisionist has some substance in his revision petition.
10. The thrust of the argument of the revisionist is that in her application under Section 311 Cr.P.C., the respondent herein has Page No. 5 /9 CR/62/18 Prem Prakash Vs. Nirmala Kumari pointed out that on 31072007, the respondent herein by way of LIC Policy No.184986903 came to know the name of wife of revisionist herein as Sunita. Moreover, when she came to know this fact in the year 2007, then why she has moved application under Section 311 Cr.P.C. after 11 years of knowing this fact and not earlier.
11. This point has been clearly dealt with by the Trial Court in the impugned order. Even otherwise, the respondent has clarified that it was only a typographical error and instead of 2017, 2007 has been mentioned in the application under Section 311 Cr.P.C.
12. As far as scope and amplitude of Section 311 Cr.P.C. is concerned, it is absolutely wide and huge. In a judgment titled as Mohanlal Shamji Soni Vs. Union of India reported in 1991 Crl. LJ 1521, the hon'ble Supreme Court of India has been pleased to observe as under;
"It is therefore clear that the criminal Court has ample power to summon any person as a witness or recall and reexamined any such person even if the evidence on both sides is closed and the Page No. 6 /9 CR/62/18 Prem Prakash Vs. Nirmala Kumari jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
13. In another case titled as UT of Dadra and Haveli & Others Vs. Fatehsinh Mohansinh Chauhan reported in 2006 Crl.LJ 4636, the hon'ble Supreme Court of India has further clarified the scope of Section 311 Cr.P.C. and has been pleased to observe as under;
"the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or reexamining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be Page No. 7 /9 CR/62/18 Prem Prakash Vs. Nirmala Kumari dubbed as "filling in a lacuna in prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice."
14. Therefore, as far as proposition of law is concerned, it is easily decipherable that scope of Section 311 Cr.P.C. is colossal for the just and correct decision of the case.
15. In the impugned order, the learned Trial Court has reflected that production of aforesaid document will facilitate proper adjudication of the case. Even otherwise, the revisionist will get ample opportunity to cross examine the witness in order to elicit the facts in his favour. No prejudice whatsoever would be caused to the revisionist if the said document is allowed to be proved as per law. What impact such document would make in the ultimate analysis of the case is a question which shall be addressed by the Trial Court at an appropriate stage.
16. As far as protraction of the case is concerned, the next date Page No. 8 /9 CR/62/18 Prem Prakash Vs. Nirmala Kumari of hearing is fixed as 18122018, on which date the respondent herein shall prove the document and revisionist shall be allowed to cross examine on the said document subject to payment of cost of Rs.2,000/ to the revisionist. Thereafter, the Trial Court shall proceed with the decision of the case.
17. In view of the foregoing reasons and discussion, the revision petition is accordingly dismissed.
18. Copy of this order be sent to learned Trial Court immediately.
19. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT Digitally signed ON 12th DECEMBER, 2018 by DEEPAK JAGOTRA DEEPAK Location: KARKARDOOMA JAGOTRA COURTS, DELHI Date: 2018.12.12 15:28:09 +0530 (DEEPAK JAGOTRA) DISTRICT & SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI Page No. 9 /9