Delhi District Court
Ms. Shabnam vs The State/Nct Of Delhi on 8 December, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQ)
TIS HAZARI COURTS, DELHI.
Cr. Revision No. 709/2019
Ms. SHABNAM
W/o Shri YASEEN
R/o H.No. 2207, GALI SHANKARWALI,
BAZAR SITA RAM, DELHI - 110006
..... REVISIONIST
VERSUS
1. THE STATE/NCT OF DELHI
2. YASEEN S/o SHRI ILIYAS
3. ILIYAS S/o SHRI YUSUF
4. Mst. NAFISA W/o SHRI ILIYAS
5. SHRI NADEEM S/o SHRI ILIYAS
6. YASMEEN D/o SHRI ILIYAS
PRESENTLY ALL RESIDING AT C-248,
KHASRA Nos. 47/25, 54/4, 54/5 AND 2/54
GALI No. 1, MOHALLA DILSHAD MASJID
OLD MUSATAFABAD, DELHI 94
..... RESPONDENTS
Date of filing : 15.11.2019
First date before this court : 15.11.2019
Arguments concluded on : 05.12.2020
Date of Decision : 08.12.2020
APPEARANCE : Shri Nitya Sharma, counsel for revisionist
Cr. Revision No. 709/2019 Page 1 of 10 pages
Ms. Shabnam vs State
JUDGMENT
1. The revisionist, complainant defacto in trial of case FIR No. 314/2014 of PS Chandni Mahal for offences under Section 498A/406/34 IPC has challenged order dated 13.09.2019 (whereby application of the revisionist under Section 311 CrPC for recording her further chief examination was dismissed) and order dated 18.10.2019 (whereby a police inspector was partly examined as PW14 and his further cross examination was deferred) of the learned trial magistrate.
2. For ready reference, the impugned orders dated 13.09.2019 and 18.10.2019 are quoted below:
Order dated 13.09.2019 "State v. Yaseen and Ors.FIR No. 314/14
PS Chandni Mahal Case No. 301536/2016 13.09.2019 Present : Ms. Parul Singh, Ld. APP for the State All the accused in person along with Ld. counsel Complainant has moved an application seeking further examination in chief in the present case. There is no justifiable ground to allow the application. Prosecution can not be allowed to fill the lacuna in its case at this stage. In these circumstances, the said application stands dismissed.
Put up for PE on 18.10.2019.
(Ambika Singh) Metropolitan Magistrate (Mahilla Court)-01 Central District, THC, Delhi 13.09.2019"
Cr. Revision No. 709/2019 Page 2 of 10 pages
Ms. Shabnam vs State
Order dated 18.10.2019
"State v. Yaseen
CC Regn No. 301536/2016
FIR No. 314/14
PS Chandni Mahal
18.10.2019
Present : Ms. Parul Singh, Ld. APP for the State
Counsel for accused with accused
PW Inspector Yashpal Singh is present
PW Inspector Yashpal Singh examined in chief as PW14 and partly cross examined. His further cross examination is deferred.
Put up for remaining cross-examination of PW14 and remaining prosecution evidence on 01.11.2019 (Ambika Singh) Metropolitan Magistrate (Mahilla Court)-01 Central District, THC, Delhi 18.10.2019"
3. On the very first date of hearing, learned counsel for revisionist requested for an adjournment to prepare the brief further and address on maintainability of this revision petition. Thereafter, across repeated adjournments either the counsel for the revisionist did not appear or sought adjournment to prepare the brief. Finally, on 05.12.2020, I heard learned counsel for revisionist on the issue of maintainability of this revision petition.
4. On being pointed out the provision under Section 397(2) CrPC to the effect that an interlocutory order is not amenable to revisional jurisdiction of this court, the only argument advanced by learned counsel for revisionist was that the impugned order would hinder the administration of justice, therefore, the impugned order is liable to be set aside. No other Cr. Revision No. 709/2019 Page 3 of 10 pages Ms. Shabnam vs State argument was advanced on behalf of the revisionist.
5. For the sake of ready reference, the provisions under Section 397 CrPC are quoted as follows :
"397. Calling for records to exercise powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local 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 inferior Court, 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, shall be deemed to be inferior to the 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 an 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 entertained by the other of them.
6. Noticeably, Section 397(1) CrPC confers on the High Court as well as Court of Sessions very wide powers to examine the legality, correctness and propriety of any order passed by any "inferior criminal court". Sub-section (2) of Section 397 CrPC operates as a check on the said vast revisional powers and the purpose of the said check is to curb Cr. Revision No. 709/2019 Page 4 of 10 pages Ms. Shabnam vs State delays in the decision of the criminal cases, in order to ensure fair and expeditious trial.
7. Basically, a judicial order passed by a criminal court can be either final order or intermediate order or interlocutory order. So far as final order is concerned, there can be no difficulty in the sense that an order of acquittal or conviction is a final order. The issue lies while distinguishing between an interlocutory order and an intermediate order, which distinction is necessary in view of the statutory bar created by Section 397(2) CrPC, which curtails the revisional powers of the High Court and the Court of Sessions with respect to interlocutory orders.
8. The concept of an intermediate order was elucidated in the case of Madhu Limaye vs State of Maharashtra, (2000) 6 SCC 195 by the Hon'ble Supreme Court of India while distinguishing a final order from an interlocutory order. The Hon'ble Supreme Court of India laid down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. An intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.
9. In the case of K.K. Patel vs State of Gujarat, (2000) 6 SCC 195, the Hon'ble Supreme Court of India held thus :
"It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Cr. Revision No. 709/2019 Page 5 of 10 pages Ms. Shabnam vs State Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra, V. C. Shukla v. State through CBI and Rajendra Kumar Sitaram Pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable." (emphasis supplied)
10. In the case of Girish Kumar Suneja vs CBI, {Cr. Appeal No. 1137 of 2017, arising out of SLP (Crl.) 9503/2016, decided on 13.10.2017 by the Bench of Hon'ble Mr. Justice Madan B. Lokur}, the Hon'ble Supreme Court of India elaborately discussed the law related to right to file revision petition under Section 397 CrPC and recapitulated the previous judicial precedents, including those cited above, and held thus :
"16. While the text of sub-section (1) of Section 397 of the Cr.P.C. appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub-section (2) thereof. There is a complete prohibition in a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
17. There are three categories of orders that a court can pass - final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an Cr. Revision No. 709/2019 Page 6 of 10 pages Ms. Shabnam vs State interlocutory order.
......
......
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel v. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said :
"It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhy Limaye v. State of Maharashtra, V. C. Shukla v. State through CBI and Rajendra Kumar Sitaram Pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."(Emphasis supplied by us). ....
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order which if set aside would result in culmination of the proceedings." (emphasis supplied)
11. In the backdrop of above cited law, in order to determine as to whether the impugned orders dated 13.09.2019 and 18.10.2019 in the Cr. Revision No. 709/2019 Page 7 of 10 pages Ms. Shabnam vs State present case are interlocutory orders (and thereby hit by Section 397(2) CrPC) or the same are intermediate orders (and thereby amenable to the revisional jurisdiction of this court), the test is as to whether setting aside the impugned orders would lead to termination of proceedings and if so, the impugned orders cannot be held to be interlocutory orders.
12. If the order dated 13.09.2019, impugned in the present case (whereby application of the revisionist under Section 311 CrPC for her further chief examination was dismissed) is set aside, the result would be recall of revisionist for her further chief examination and not termination of proceedings. That being so, in my considered view the impugned order dated 13.09.2019 is not intermediate order but interlocutory order, so the same is not amenable to revisional jurisdiction of this court. The test cannot be to see whether the issue of recall of prosecution witnesses would come to termination. For, going by that test, every order leads to termination of proceedings pertaining to the issue raised in that order. Every order passed during the criminal trial cannot be intermediate order.
13. The Hon'ble Supreme Court of India in the case of Sethuraman vs Rajamanickam, 2010 (5) RCR Crl. 512 clearly held thus:
"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 CrPC were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) CrPC.... 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...."
Cr. Revision No. 709/2019 Page 8 of 10 pages
Ms. Shabnam vs State
14. The Hon'ble Delhi High Court also in the case of Neelam Mahajan vs The State, Cr. MC 2242/2014 decided on 08.04.2016 held that an interlocutory order would not cease to be interlocutory order merely because it disposes of an aspect in the course of proceedings even though adversely affecting a party for the time being and that an order passed under Section 311 CrPC is interlocutory in nature, so not amenable to revisional jurisdiction.
15. Similarly, if order dated 18.10.2019 is set aside, there would be no culmination of proceedings since order dated 18.10.2019 was simply a procedural order whereby PW14 was partly examined and his further examination was deferred. That being so, order dated 18.10.2019 also an interlocutory order which cannot be tested in the revisional jurisdiction of this court.
16. Infact, it is to deal with the situations like the present case, that bar of Section 397(2) CrPC was enacted so as to prevent delays in disposals of trials.
17. In view of above discussion, it is held that the impugned orders dated 13.09.2019 and 18.10.2019 being interlocutory orders are not amenable to revisional jurisdiction of this court. Consequently, the revision petition is dismissed.
18. A copy of this judgment be sent to the learned trial court and Cr. Revision No. 709/2019 Page 9 of 10 pages Ms. Shabnam vs State file be consigned to records.
Announced through videoconferencing due to Covid-19 lockdown on this GIRISH Digitally signed by GIRISH KATHPALIA 08th day of December, 2020 KATHPALIA Date: 2020.12.08 11:16:43 +05'30' (GIRISH KATHPALIA) Principal District & Sessions Judge (HQ) Tis Hazari Courts Delhi 08.12.2020 Cr. Revision No. 709/2019 Page 10 of 10 pages Ms. Shabnam vs State