Delhi District Court
R.K. Jain vs State on 5 December, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
Cr. Rev. No. 285/16
R.K. Jain vs State
05.12.2018
O R D E R
1. By way of the present petition, the petitioner has assailed two
impugned orders dated 17.03.2016 and 25.07.2016. Vide order dated
17.03.2016, Ld. MM has disposed of three applications of the
petitioner. One of the application was filed u/s 311 Cr.P.C. for
summoning the Ahlmad as a witness, another application was filed u/s
91/172(3)/173(8)/239/311/313 Cr.P.C. r/w section 145 and 161 of
Indian Evidence Act for summoning necessary persons/documents on
record and third application was filed u/s 190 r/w section 156(3)
Cr.P.C. for taking cognizance of certain offences allegedly committed
by the Ahlamd, Naib Court in connivance with complainant.
2. Vide order dated 25.07.2016, Ld. MM disposed of one another
application filed by the petitioner seeking certain directions which were
summarized by Ld. Trial Court in para no.4 of its order dated
25.07.2016 which reads as under:
(a) the missing original and missing reconstructed certified copy
of the complaint be got reconstructed and FIR be got
Cr. Rev. No.285/16 RK Jain vs State 1 of 4
registered against the persons involved and investigation
thereof be monitored;
(b) the remaining evidence be recorded expeditiously, however,
only after getting the said complaint reconstructed;
(c) the proceedings be dropped if missing documents are not
traced;
(d) exemplary cost be awarded to the applicant/accused for willful
misrepresentation by Ahlmad Sh. Rajpal and complainant,
and the said Ahlmad and complainant be booked for perjury;
(e) next date of hearing be fixed for 22.07.2016, and (f) any other
order deemed fit may be passed.
3. The petitioner has assailed the said two orders by way of which the
said applications moved by the petitioner were disposed of. The
applications which have been disposed of by the said orders seem to
be of interlocutory nature. Thus, prior to hearing arguments on merits,
the arguments regarding maintainability of the present petition have
been heard. During the course of arguments, the petitioner submitted
that the Ld. Predecessor had heard the arguments in this matter, thus,
at this stage, the issue of maintainability cannot be raised. It is well
settled law that the issue of maintainability, if involves question of law,
can be taken up at any stage. Petitioner submitted that the
applications which have been dismissed by Ld. MM, are not of
interlocutory nature and it has affected his important rights and in this
regard, he filed on record copy of certain pages of a book which
contains the provisions of section 397 to 401 Cr.P.C. along with notes.
In this regard, he has also cited the judgments mentioned in the notes
appended to the provision u/s 397 Cr.P.C in the photo copy. Thus, he
Cr. Rev. No.285/16 RK Jain vs State 2 of 4
submitted that the present petition is maintainable as the impugned
orders have affected his important rights and the applications are not
of interlocutory nature.
4. In the case of Amar Nath v. State of Haryana, (1977) 4 SCC 137, the
Hon'ble Supreme Court has held that the revision petition against the
order by virtue of which interlocutory application has been disposed off
is not maintainable. The relevant para of this judgment reads as
under:
"...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."
5. In the case of Sethuraman vs. Rajamanickam reported as 2009 (5)
SCC 153, the Hon'ble Supreme Court held that the revision petition
against the order rejecting the application u/s 91 and 311 Cr.P.C, is
not maintainable. The relevant para of the judgment is reproduced as
under:
"4. Secondly, 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 Criminal Procedure Code, were
interlocutory orders and as such, the revision against those orders
was clearly barred under Section 397(2) Criminal Procedure Code
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 manner, Cr. Rev. No.285/16 RK Jain vs State 3 of 4 decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Criminal Procedure Code for production of documents and other on the application under Section 311 Criminal Procedure Code 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.
6. Thus, keeping in view of the settled law the present petition is not maintainable qua the two applications, one filed u/s 311 Cr.P.C for summoning the predecessor Ahlamd and another u/s 91/172(3)/173(8)/239/311/313 Cr.P.C. r/w section 145 and 161 of Indian Evidence Act. Now put up for arguments in respect to the application of the petitioner u/s 190 Cr.P.C r/w section 156(3) Cr.P.C and another application which was disposed off vide impugned order dated 25.07.2016.
(Ajay Gupta) ASJ02/ Special Judge(NDPS) KKD/East/Delhi Announced in open court on 05.12.2018 Cr. Rev. No.285/16 RK Jain vs State 4 of 4