Delhi District Court
Cbi vs Mohd. Salim Khatri on 3 September, 2025
IN THE COURT OF SH. GAURAV RAO,
SPECIAL JUDGE, CBI-01 (PC ACT),
ROUSE AVENUE COURT COMPLEX, NEW DELHI
CR No. 26/2025
RC No. S181994E0001
CNR No. DLCT11-000590-2025
Central Bureau of Investigation
Vs.
Mohd. Salim Khatri
03.09.2025
ORDER
Vide the present order, I shall dispose of the revision petition filed under section 438 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter BNSS in short) on behalf of revisionist/Central Bureau of Investigation (CBI) against order dated 05.06.2025 passed by the Ld. Chief Judicial Magistrate, Rouse Avenue District Court, New Delhi (hereinafter referred to as the Ld. Trial Court) in IA No. 02/2025 during the course of trial of CC No. CBI/224/2019 titled as CBI v. Mohd. Salim Khatri (hereinafter the impugned order).
Revision Petition
1. It is the revisionist's case that the RC SI8 1994 E 0001 was registered in CBI, EO-II, New Delhi on 13.05.1994 against CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 1 of 37 Mohd. Salim Khatri, partner of M/s Technic Automobiles Pvt. Ltd., New Delhi, M/s Sealand India, New Delhi and A.K. Joshi, Custom House Agent (CHA) of M/s Sealand India (since deceased) under section 120-B r/w 420, 511, 468 & 471 of Indian Penal Code 1860 (in short IPC) and Section 12 (1)(b) & 12 (1)(d) of the Passport Act, 1967 on the written complaint of Directorate of Revenue Intelligence (DRI).
2. It is it's case that Mohd. Salim Khatri and Sh. A.K. Joshi (since deceased) entered into criminal conspiracy with unknown persons and in pursuance thereof attempted to cheat, on the strength of forged documents, by attempting to import 9 Honda Cars valued at Rs. 1.80 crores. Enquiries caused by Customs Officers revealed that none of the importer i.e. (a) Sh. Mohd. Ahmad (b) Sh. P.H. Anthru (c) Sh. Sheikh Hussain (d) Sh. Paul Daniel Mohan Das (e) Sh. J.M.A Wahab (f) Sh. K. Gangadharan (g) Sh. G.K. Bhumayya (h) Sh. K. Shanimugam (i) Sh. R.K. Shridharan were genuine importers and their passports were fraudulently misutilized and manipulated for the purpose of importing these cars by Mohd. Salim Khatri and A.K. Joshi.
3. It is further it's case that various Honda Cars were being imported surreptitiously and fraudulently thereby defrauding the Government of India by not producing a proper import license and not paying customs duty at the appropriate rate at Air Cargo Complex, CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 2 of 37 IGI Airport, New Delhi and also the cars were being cleared by mis- declaration. It is it's case that the officials of DRI seized 9 Honda Cars valued at Rs. 1.80 crores on 20.08.1992 & 22.09.1992 under Customs Act at IGI Airport New Delhi vide the Bills of Entry and Airway Bills.
4. It is further it's case that bills of entry were filed by Sh. A.K. Joshi, CHA of M/s Sealand for import of Honda cars thereunder, however, no bill of entry was filed in respect of import of car in the name of Sh. K. Gangadharan. The officers of DRI who made verification of the addresses mentioned in the bill of entry/Airway bills found that the addresses mentioned therein were wrong & did not exist and the DRI also seized certain passports from the premises of M/s Sealand (India).
5. It is further it's case that the passports were issued by the respective passport offices but addresses shown on the passports are/were altogether different from what have been shown in the bills of the entry for import of 9 Honda cars. The passport holders were not found at Delhi addresses as mentioned in the bills of entry and in some cases, photographs were changed & signatures were forged. Saving Bank accounts were opened in the name of 9 passport holders with Oriental Bank of Commerce, Sarva Priya Vihar Branch, Kalu Sarai, New Delhi in the year 1992 with initial cash deposit of Rs.
CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 3 of 37 500/-. One account is/was introduced by Sh. Mohd. Salim Khatri and in rest of the cases, address were found wrong.
6. It is further it's case that various forms have been found to be filled in the handwriting of accused A.K. Joshi and as per the report of GEQD, handwriting of accused A.K. Joshi tallies with that of various forms containing false/forged particulars.
7. It is further it's case that Sh. R.P. Shridharan in his statement recorded u/s 108 of the Customs Act stated that accused Mohd. Salim Khatri approached him on the pretext of importing a car in India, through him, on monetary consideration as well as took his passport and signatures on blank papers. Similarly, LW 42 Guntaka also named accused Mohd. Salim Khatri & accused A.K. Joshi for forging their signatures on affidavit/documents etc.
8. It is further it's case that during the trial of the said RC prosecution examined 22 witnesses in total and thereafter PE was closed & the statement of accused was recorded on 04.02.2025. It is also its case that on the basis of statement recorded u/s 294 CrPC dated 18.12.2019, wherein accused admitted multiple documents, as much as 56 prosecution witnesses were dropped by the Ld. Trial Court vide order dated 18.12.2019 which included LW8, LW25, LW42, LW43, LW44, LW48, LW54 and LW60 crucial to the case of prosecution.
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9. It is its case that an application u/s 311 Code of Criminal Procedure, 1973 (Cr.P.C.) was filed by it for summoning of these aforementioned LWs as they were essential for just decision of the case, however, vide the impugned order, the aforementioned application was dismissed by the Ld. Trial Court mainly on the ground that matter is pending for more than 20 years, earlier also application u/s 311 Cr.P.C. was allowed during PE stage, the failure on part of prosecution in non filing such application earlier and also on ground that CBI filed this application only when issue was raised in defence by opposite counsel at the stage of final argument.
10. It is further it's case that the impugned order is perverse, erroneous and patently bad for the reasons mentioned below:-
a. The Ld. Trial court erred in mainly relying on the age of the case which spans over more than 20 years to dismiss the application filed u/s 311 Cr.P.C. which is in direct contravention of the judgment of the Hon'ble Apex Court in Manju Devi vs. State of Rajasthan (2019) 6 SSC 203.
b. That it is settled law that exercise of power u/s 311 Cr.P.C. should be resorted to with the object of finding the truth on obtaining proper proof of such fact which would lead to just and correct decision of the case. Further, the power under section 311 Cr.P.C.
CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 5 of 37 should be exercised so that the judgment is not based on inchoate, inconclusive and speculative presentation of the case as same would defeat the ends of justice as held in Rajaram Prasad Yadav vs. State of Bihar (2013) 14 SSC 461.
c. Further, as was held in Varsha Garg vs. State of MP 2022 Livelaw (SC) 662 that the court is vested with a broad and wholesome power to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. Further, the filling of the resultant loopholes on the account of allowing the application is a subsidiary factor and the Court's determination of the application should only be based on the test of the essential of the evidence. It is the duty of the criminal court to allow the prosecution to correct an error in interest of justice.
d. Further merely because an earlier application of prosecution u/s 311 Cr.P.C. had been allowed, there is no bar to subsequent filing or allowing of similar application.
e. By calling of such witnesses no prejudice would have had been caused to the accused if such an application was allowed as he would have got adequate opportunity to cross examine the said witnesses and this is not his case that he had cross-examined certain witnesses, revealed his defense and brought lacuna in case of prosecution CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 6 of 37 through such cross-examination which is now sought to be covered by the prosecution.
f. In addition to above, the competing interest of the accused to have a speedy trial and the duty of the court in doing justice to the society at large, the tilt of the Hon'ble Apex Court has been towards allowing the interest of justice to be served by allowing application under section 311 Cr.P.C. even at the stage of final arguments and after closing of evidence.
g. As settled through multiple judgments, if the witnesses are essential for just decision of the case, then the court is duty bound to allow such an application for calling of the witnesses. That out of the cited witnesses sought to be called, LW-8 (Sh. Sanmugavel @Sanmugam, R/o Uthupatti, near Kovilpatti, Dist. Chidambaram, Tamil Nadu), LW 42( sh. G.R. thumayya, R/o 2-37. Jangapally, PO Totapally, Dist- Karim Nagar, Andhra Pradesh) and LW-48 (Sh. Ravi P. Sreedharan s/o Sh. Sreedharan, R/o Putheenveedu House, Maothedium, PO-Edakkara, Mallapuram, Kerala) are the witnesses whose passports have been misutilized/entries therein have been manipulated falsely and they would establish that all those imports of Honda Cars in their respective names was a fraudulent activity of the accused whereby forgery of valuable documents was committed and dishonest gains were made. Also, these witnesses are primary source to verify their passport credentials and therefore their evidence is CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 7 of 37 essential for just decision of the case and denial of same would cause irreparable damage to the interest of justice.
h. Further, LW25 Sh. Paul D. Mohandas, r/o A-24, Cross Road Maharana Pratap Nagar, Doorwada Dharavi, Bombay-17), LW-43 (Sh. Guntaka Rajmallu S/o Sh. Appaiah, Village Jangapally, PO- Bejjenki Mandal, Dist-Karimnagar. Andhra Pradesh) and LW-44 (Sh. Mohd. Abdul Khadeer @ Salim Bhai 5/o Mohd. Abdul Rahim, R/o 12-2-37, Murad Nagar, Hyderabad-28) are the witnesses who would prove conspiracy between the accused persons in active procurement of passports for misutilization in import of cars by evading customs duty, whereas LW-54 (Sh. Mohan Rao Katreddi, Manager, Al- Rehman Associates, 13, 2nd Floor, Commercial Complex, Seikh Sarai, Phase-II, New Delhi) would prove accused's link to M/s Technic Automobiles and the fact that accused Mohd. Salim Khatri was introducer to the account of one of the victim (Sh. Sheikh Hussain Saheb) whose passport was misutilized for import of cars; and lastly LW-60 (Sh. Surinder Kumar Saini, D-188, Freedom Fighter Enclave, Neb Sarai, New Delhi) would prove that accused Mohd Salim Khatri was the person who was actively managing all the accounts opened in the name of the passport holders (with fake addresses) for the said import.
i. That, the examination of these witnesses is essential to the just decision of the case, non-allowing of same would cause grave CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 8 of 37 prejudice to the prosecution and interest of justice would suffer irreparable injury.
j. That without examination of these additional witnesses, it would not be possible to establish forgery/abuse of passports. These additional witnesses were actual holders of these passports and will prove veracity of travel history and foreign travel by these persons. Establishing this fact is essential to the just decision of the case.
k. That the Ld. Trial Court failed in applying the law to the facts of the case and dismissed the application u/s 311 Cr.P.C. in arbitrary & unjust manner and therefore the order is perverse & patently illegal on the face of it and deserves to be set aside. That the Ld. Trial Court failed to appreciate that the solemn duty of law is to find truth & dispense justice and delay cannot be a ground to reject an application which would have established truth.
11. Ld. Public Prosecution for the revisionist/CBI relied upon Honnaiah T.H. v. State of Karnataka and Ors. AIR Online 2022 SC 1261 and Madhu Limaye Appellant v. State of Maharashtra AIR 1978 Supreme Court 47 in support of the revision petition.
Reply CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 9 of 37
12. No reply was filed on behalf of the respondent, however, the revision petition was vehemently opposed by Ld. Counsel for the respondent who relied upon Girish Kumar Suneja v. CBI Supreme Court of India (July 13, 2017), Sethuraman v. Rajamanickam Criminal Appeal No. 486-487 of 2009 9 Arising out of SLP (Crl.) No. 2688-89 of 2005) and Mahima Management Services Pvt. Ltd. v. Creative Property Developers Pvt. Ltd. & anr. CRR No. 2481 of 2018, CRR No. 2482 of 2018 & CRR No. 2483 of 2018 dated 01.02.2024 to argue that the revision petition is not maintainable.
Findings
13. I have heard the rival contentions raised at bar, considered the revision petition as well as the Trial Court Record, which includes the impugned order and also gone through the relevant case laws relied upon by the parties.
14. The brief facts of the case in CC No. CBI/224/2019, wherein the impugned order was passed on IA No. 02/2025 of CBI, as culled out in the Ld. Trial Court's impugned order, are as follows:-
"13. Present case RC was registered on the basis of complaint received from the Directorate of Revenue Intelligence (DRI) alleging that accused persons herein had entered into criminal conspiracy with unknown names to cheat on the basis of forged documents by attempting to import nine Honda Cars valued at Rs. 1.80 crores. Enquiries conducted by the custom authorities revealed that none of the importers in whose name the cars were imported were genuine and that their passports were misutilized CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 10 of 37 and manipulated by the accused persons. The cars so imported were on the basis of non production of a proper import license and by not paying the customs duty and they were cleared by misdeclaration. All the nine Honda cars were seized by the DRI. Investigation also revealed that on verification of addresses as mentioned in the bills of entry/airway bills, they were found to be wrong and non-existing. Eight passports were also seized and the Mastatement of relevant persons also revealed that no custom duty was paid for import of the cars. The addresses as mentioned on the passports were found to be altogether different from what has been shown in the bills of entry. The passport holders were not found at their addresses and in some cases the photographs were changed and signature were also forged. Investigation further revealed that passport in the name of Sh. R.P. Shreedharan was found to be genuine and in his statement recorded by the DRI he had disclosed that he gave his passport to accused Md. Salim Khatri and A.K. Joshi (since expired) for the sum of Rs. 5,000/-and that he had not purchased nor imported any car.
14. After culmination of the investigation instant charge-sheet was filed. On 09.05.2003, charges were framed against accused persons to which they both pleaded not guilty and claimed trial. Thereafter, matter proceeded for the recording of prosecution evidence. During the recording of Prosecution Evidence total 23 witnesses were examined and vide order dated 14.08.2024 PE was closed. On 04.02.2025, statement of accused u/s 313 CrPC was recorded and on the same day DE was closed.
15. On 28.02.2025 and 19.03.2025 part final arguments were also heard on behalf of both the sides. It is during the stage of final arguments, the instant application came to be filed by the prosecution."
15. The primary reason for dismissal of the revisionist's application under section 311 Cr.P.C by the Ld. Trial Court appears to be the long drawn period of more than 21 years during which, the matter remained pending for prosecution evidence. The Ld. Trial Court also considered the fact that during this period, prosecution examined only 23 witnesses. While observing that the trial appears to CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 11 of 37 be a never ending exercise, the Ld. Trial Court also observed that prosecution had ample opportunity to summon & examine the witnesses whose summoning was sought vide the said application. The fact that the application was moved after certain submissions were advanced during the course of final arguments by the Ld. Defence Counsel also weighed with the Ld. Trial Court while dismissing the revisionist's application u/s 311 Cr.P.C.
16. As far as the delay in conclusion of the trial is concerned, there is nothing in the order of the Ld. Trial Court which reflects that the delay is/was attributable to the prosecution/revisionist. There is no observation of the Ld. Trial Court that since the filing of the chargesheet and especially since the framing of the charge, the prosecution/revisionist did not pursue the matter diligently or it's conduct was lackadaisical or sloppy, much least that the delay was deliberate. Undoubtedly, right to speedy trial is an essential component of the fundamental right to life and personal liberty guaranteed under Article 21 of The Indian Constitution and delay in judicial process can undermine justice, however, delay alone cannot be a reason for curtailing a party's right to lead the best possible, available evidence in support of it's case, more so when the said party is not responsible for the delay or protracted trial. Purpose of any trial is to arrive at the truth and ensure that justice is done. If the evidence proposed to be adduced is germane to the issue involved, curtailing the right to lead such evidence solely on account of delay would CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 12 of 37 defeat the ends of justice. The primary duty of a court is to ensure that no relevant, material evidence is excluded from consideration if the same is essential for a just decision of the case. Incomplete, improper & inconclusive evidence affects the proper adjudication of the matter and prevents the court from arriving at a just decision. It is the court's duty to ensure that justice is administered on the basis of complete and available evidence on record. The object underlying section 311, Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case.
17. It is settled position of law that no party to a trial can be foreclosed from correcting errors or from producing proper evidence which could not be produced earlier due to inadvertence or otherwise and it can also be permitted to fill in the lacuna in it's case provided no serious prejudice is caused to the opposite side. Once the opposite side has ample, fair opportunity to rebut the evidence led against it by way of cross-examination or by way of leading it's own evidence in rebuttal, the party seeking to bring on record any evidence which it deems necessary & material and which is neither a new evidence nor one which changes the nature of the trial, should be allowed to do so. Reliance in this regard may be placed upon Rajendra Prasad vs Narcotic Cell Through Its Officer Incharge AIR 1999 Supreme Court CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 13 of 37 2292. The following observations made in Rajaram Prasad Yadav Vs. State of Bihar (2013) 14 SCC 461 would be worth the consideration:-
"15. In this context, we also wish to make a reference to certain decisions rendered by this Court on the interpretation of Section 311 Cr.P.C. where, this Court highlighted as to the basic principles which are to be borne in mind, while dealing with an application under Section 311 Cr.P.C. In the decision reported in Jamatraj Kewalji Govani vs. State of Maharashtra - AIR 1968 SC 178, this Court held as under in paragraph 14:-
"14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction." (Emphasis added)
16. In the decision reported in Mohanlal Shamji Soni vs. Union of India and another - 1991 Suppl.(1) SCC 271, this Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:- "10....In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."
CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 14 of 37
17. In the decision in Raj Deo Sharma (II) vs. State of Bihar - 1999 (7) SCC 604, the proposition has been reiterated as under in paragraph 9:-
"9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five- Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person." (Emphasis added)
18. In U.T. of Dadra and Nagar Haveli and Anr. vs. Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the decision has been further elucidated as under in paragraph 15:-
"15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 CrPC 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 re-examining 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 dubbed as "filling in a lacuna in the 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." (Emphasis added)
19. In Iddar & Ors. vs. Aabida & Anr. - AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated as under in paragraph 11:-
"11. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 15 of 37 limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is 'at any stage of inquiry or trial or other proceeding under this Code'. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." (Emphasis added) ...........22. Again in an unreported decision rendered by this Court dated 08.05.2013 in Natasha Singh vs. CBI (State) -
Criminal Appeal No.709 of 2013, where one of us was a party, various other decisions of this Court were referred to and the position has been stated as under in paragraphs 14 and 15:
"14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must, therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage', or 'or any enquiry', trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 16 of 37 widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387.)"
18. What the prosecution/revisionist prayed before the Ld. Trial Court was summoning of LWs-8, 25, 42, 43, 44, 48, 54 & 60. The names of these witnesses was duly mentioned in the prosecution's list of witnesses filed alongwith the chargesheet way back in the year 1998, hence, these were not new witnesses but the one's the prosecution wanted to examine since the inception. The prosecution thus was not trying to introduce any new evidence which could have either changed the nature of the trial or taken the accused/defence by surprise. There is/was no way the accused could have been prejudiced CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 17 of 37 if the prosecution was given the opportunity to examine these witnesses. Merely because certain submissions were made by the Ld. Defence Counsel at the stage of final arguments which when considered by/reflected upon by the prosecution made it awake from it's slumber, realize its mistake/inadvertence, that by itself could not have been a reason to reject the prosecution's application under section 311 Cr.P.C. Most importantly, I find no reason why the defence should shy away and oppose the prosecution's legitimate demand of examining its witnesses. As discussed above, delay alone should not have been a factor for dismissing the revisionist's prayer.
19. While dismissing the revisionist's application, Ld. Trial Court also took note of proceedings dated 13.12.2019 & 18.12.2019 vide which certain documents were admitted by the accused persons and 56 witnesses, including the witnesses sought to be examined vide application under section 311 Cr.P.C, were dropped. Ld. Trial Court also considered that prior to dismissal of the application in question, prosecution had moved another application under section 311 Cr.P.C which was allowed and wherein no prayer for examination of the witnesses as prayed for in the application in question was ever made. However, merely because in it's earlier application dated 23.3.2024, CBI/revisionist had not sought examination of these witnesses, that by itself does not preclude it from examining these witnesses at a later stage. There is no bar in moving a fresh application u/s 311 Cr.P.C. just because similar application for another witness was allowed on CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 18 of 37 earlier occasion. This is more so considering the liberty granted vide order dated 18.12.2019.
20. As far as these observations in the impugned order are concerned, I have considered proceedings dated 13.12.2019 as well as 18.12.2019. At the outset while dropping 56 witnesses the Ld. Trial Court had made the following observations "In view of the documents admitted by the accused persons on 13.12.2019 following 56 witnesses are dropped, subject to the condition that in case any of these witnesses is required to be examined for proving a fact other than the documents admitted by the accused, prosecution will be at liberty to seek their summoning accordingly" . Hence, despite dropping of 56 witnesses, prosecution was at liberty to examine any of these witnesses for proving a fact other than the documents admitted by the accused persons. Thus the prosecution could still exercise it's right to examine any of these witnesses if it deemed their examination necessary or material to it's case. If the prosecution deemed it fit that mere admission of the documents by the accused was not sufficient and it wanted to prove certain crucial facts other than the admitted documents, prosecution could have and rather should have been permitted to examine the proposed witnesses. It is the prosecution which knows how best to conduct its case and examination, non- examination of witnesses should be left to it unless the court is of the opinion that the witnesses are absolutely irrelevant to the trial, controversy at hand.
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21. No doubt, vide proceedings dated 13.12.2019, the accused persons admitted document D-10 i.e. passport bearing no. Y-231505 dated 18.05.1986, however, mere admission of the passport is not an admission of the prosecution/CBI's case that the said passport is a forged, fabricated one or that it was used for the purpose of importing one of the car in question. For the said fact to be proved and all other facts related to preparation of the said forged passport, prosecution had proposed to examine LW8 as a witness in it's list of witnesses filed alongwith the chargesheet. He having not been examined, dropped on account of admission of the passport by the accused persons, crucial facts relating to preparation of forged passport and the circumstances in which it was prepared and used could not be brought on record. It is the prosecution/CBI's case that this forged/fabricated passport was used to import car without payment of custom's duty. Similarly, though file D-24 was also admitted by the accused persons, however, it is the prosecution's case that the signatures on the said document/file is also not of LW8 and that he did not import any car. It is the prosecution's case that in addition to the other evidence on record, LW8's testimony is/was essential to prove these crucial facts.
22. The joint statement of the accused persons as was recorded by the Ld. Trial Court at the time of admission of these documents read as "I admit the genuineness of documents mentioned CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 20 of 37 below and I have no objection if the author/signatories of these documents are exempted from formal examination and the said documents are read in evidence as per provisions of section 294 Cr.P.C. It is clarified that I am admitting the existence, date and time of preparation of the FIR, DD entry and other documents and not the truth of the contents thereof". According to this statement on one hand the genuineness of the documents mentioned in the table following the said statement was admitted while at the same time, the accused persons did not admit the contents of the same. Only the existence of the documents was admitted and not the contents. Once it is the prosecution's case that D-10 is a forged & fabricated document, I completely fail to understand how the genuineness of the document was admitted though at the same time, the contents of the same were denied/not admitted.
23. Same is the position with LW42 & LW48. It is the prosecution's case that though their passports, as admitted by the accused persons vide proceedings dated 13.12.2019, i.e. passport no. A-328021 (D-15) and passport no. X-023290 (D-16) are genuine but during the course of investigation LW42 & LW48's statement was recorded under section 161 Cr.P.C wherein they categorically stated that they had handed over their passports to the accused persons in lieu of money. Further more their signatures were obtained on certain papers which according to the prosecution were subsequently misused/utilized for importing the car in questions without payment of CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 21 of 37 custom's duty. Though file/document no. D-27 & D-26 was also admitted, however, as discussed above, the contents thereof were denied by the accused persons and the prosecution through LW42 & LW48 wanted to prove on record the fact that those files were got prepared by the accused persons for importing the card, without the knowledge of LW42 & LW48. These crucial facts can only be proved on the basis of the ocular testimony of LW42 & LW48 coupled with the supporting documents on record and not on the basis of admission/denial of documents.
24. As it the prosecution's case based upon the testimony of LW8 so is it's case qua LW25. It is it's case that the admitted document i.e. passport no. Y-231505 (D-13) is a forged document and the said passport alongwith file no. D-28 was misused/utilizing for importing one of the car in question. It is the prosecution case that deposition of LW25 is essential for establishing these facts on record.
25. As far as LW43 is concerned, it is revisionist's case that the said witness is material to prove that accused Mohd. Salim Khatri had taken/obtained his thumb impression on certain papers in lieu of payment of Rs. 3,000/- to him and the purpose of obtaining his thumb impression was again for using the said papers for importing cars without payment of custom duty. Furthermore it was in his presence that LW42 had handed over his passport to Mohd. Salim CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 22 of 37 Khatri/accused and also signed certain documents.
26. As far as LW44 is concerned, his testimony according to the prosecution is essential to establish the link between the accused persons and the innocent citizens/witnesses whose documents/passports were forged, misused/utilized for importing the cars. It is the prosecution case that it was LW44 who had arranged LW42 & LW43 on the asking of accused Mohd. Salim Khatri.
27. As far as LW54 is concerned, it is the prosecution case that his testimony is essential to prove that accused Mohd. Salim Khatri is/was owner of M/s Technic Automobiles as well as for proving/identifying his signatures on the account opening form alongwith specimen signatures of Mr. Sheikh Hussain Saheb as introducer. It is the CBI's/prosecution's case that testimony of LW54 is essential to establish these crucial facts on record to prove the chain, link and the conspiracy as such.
28. As far as LW60 is concerned, it is the prosecution case that the said witness is essential to prove the crucial facts that the accounts open in the name of the individuals, in whose names the cars were imported, were infact operated by accused Mohd. Salim Khatri thereby linking and rather making him the kingpin of the entire conspiracy.
CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 23 of 37
29. These crucial facts, which the prosecution wants to bring on record, in my considered opinion cannot be established solely on the basis of admission of the accused persons under section 294 Cr.P.C qua certain documents as detailed in the table following the statements, which admission otherwise is quite vague to a certain extent. The ocular testimony of the above witness is essential to establish those facts on record. Atleast the prosecution deserves the opportunity to bring those facts through the testimony of the witnesses in question. The admission/denial would not in itself prove the forgery of passports or the other documents or how the forgery was committed or for that matter the alleged conspiracy. For this, prosecution rightly deserves to examine the proposed witnesses. Hence the Ld. Trial Court should not have denied the opportunity sought by the prosecution.
30. The maintainability of the revision petition itself was challenged by Ld. Counsel for the respondent who vehemently argued that the impugned order is an interlocutory order against which revision is clearly barred. It was argued that section 438 of BNSS is exactly pari materia with erstwhile section 397 (2) Cr.P.C. and the impugned order being not a final order the law is well settled that revision against the same is not maintainable. In support of his arguments Ld. Counsel for the respondent relied upon Girish Kumar CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 24 of 37 Suneja (supra), Sethuraman (supra) & Mahima Management Services Pvt. Ltd. (supra) . However, I find no merit in his arguments.
31. Section 438 of BNSS is reproduced hereunder:-
"438. 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 his own bond or bail 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 439.
(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."
32. What section 438 (2) BNSS bars is exercise of power of revision in relation to an interlocutory order, however, the impugned order cannot be said to be an interlocutory order for the reason that the said order substantially affected the right of the prosecution to lead evidence. Vide the said order, the prosecution's right to lead further CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 25 of 37 evidence, that too material evidence was closed by the Ld. Trial Court. The natural consequence of closer of such a right is/was final arguments being advanced by the parties and the judgment that would follow. The impugned order thus cannot be set to be purely interim or of temporary nature, which does not decide or touch upon important rights/liabilities of the parties. The said order rather substantially affects the right of the prosecution and thus cannot be set to be an interlocutory order. Also as for the purpose of securing the ends of justice & ensure a fair trial, interference in the impugned order is required and the bar contained in section 438 BNSS cannot limit the exercise of power by this court. The following observations in Honnaiah T.H (supra) are relevant for this purpose:-
"12. There would be a serious miscarriage of justice in the course of the criminal trial if the statement were not to be marked as an exhibit since that forms the basis of the registration of the FIR. The order of the trial judge cannot in these circumstances be treated as merely procedural or of an interlocutory in nature since it has the potential to affect the substantive course of the prosecution. The revisional jurisdiction under Section 397 CrPC can be exercised where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. A court can exercise its revisional jurisdiction against a final order of acquittal or conviction, or an intermediate order not being interlocutory in nature. In the decision in Amar Nath v State of Haryana, this Court explained the meaning of the term "interlocutory order" in Section 397(2) CrPC. This Court held that the expression "interlocutory order" denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. Hence, any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". Speaking for a two-Judge Bench, Justice Murtaza Fazal Ali observed:
"6. [...] It seems to us that the term "interlocutory order"
in Section 397(2) of the 1973 Code has been used in a restricted CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 26 of 37 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 affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. 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. 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 Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Sheetala Prasad v Sri Kant, (2010) 2 SCC 190 6 (1977) 4 SCC 137 as to be outside the purview of the revisional jurisdiction of the High Court.
Explaining the historical reason for the enactment of Section 397(2) CrPC, this Court observed in Amar Nath (supra) that the wide power of revision of the High Court is restricted as a matter of prudence and not as a matter of law, to an order that "suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse." In KK Patel v State of Gujarat, where a criminal revision was filed against an order taking cognizance and issuing process, this Court followed the view as expressed in Amar Nath (supra), and observed:
11. [....] 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, Madhu Limaye v State of Maharashtra, VC Shukla v State, and Rajendra Kumar Sitaram Pande v Uttam). The feasible test is whether 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."
CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 27 of 37
13. In the decision in VC Shukla (supra), this Court noted that under the CrPC, the question whether an order such as an order summoning an accused or an order 7 (2000) 6 SCC 195 (1977) 4 SCC 551 1980 Supp SCC 92 10 (1999) 3 SCC 134 Amar Nath v State of Haryana, (1977) 4 SCC 137 framing a charge is an "interlocutory order" must be analysed in the light of the peculiar facts of a particular case. In the present case, the objection taken by the defense counsel (which was upheld by the trial judge) that the statement of the informant is a statement under Section 161 CrPC travels to the root of the case of the prosecution and its acceptance would substantially prejudice the case of the prosecution.
According to the charge sheet, the statement of the appellant/ informant formed the basis of the FIR and set the criminal law in motion. Rejection of the prayer of the Public Prosecutor to mark the statement as an exhibit would possibly imperil the validity of the FIR. In this background, the order of the trial court declining to mark the statement of the informant as an exhibit is an intermediate order affecting important rights of the parties and cannot be said to be purely of an interlocutory nature. In the present case, if the statement of the appellant/ informant is not permitted to be marked as an exhibit, it would amount to a gross miscarriage of justice.................
15. The view of the High Court that a victim/ complainant needs to restrict his revision petition to challenging final orders either acquitting the accused or convicting the accused of a lesser offence or imposing inadequate compensation (three requirements mentioned under Section 372 CrPC) is unsustainable, so long as the revision petition is not directed against an interlocutory order, an inbuilt restriction in Section 397(2) of the CrPC. In the present case, the appellant filed a criminal revision as his interests as an informant and as an injured victim were adversely affected by the trial court rejecting the prayer to mark the statement of the informant as an exhibit. Having held that the order of the trial court is not interlocutory in nature and that the bar under Section 397(2) of the CrPC in inapplicable, a criminal revision filed by an informant against the said order of the trial court was maintainable. In Sheetala Prasad v Sri Kant, a two Judge Bench of this Court has held that a private complainant can file a revision petition in certain circumstances, including when the trial court wrongly shuts out evidence which the prosecution wishes to produce. Noting the principles on which revisional jurisdiction can be exercised by the High Court at the instance of a private complainant, this Court observed:
CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 28 of 37 "12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of a private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been over-looked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence, and (5) where the acquittal is based on the compounding of the offence which is invalid under the law."
33. Hence the revision is maintainable, if the court is of the opinion that the Ld. Trial Court has wrongly shut out the prosecution evidence. Also as the impugned order substantially affected the right of the prosecution, the present revision petition is very well maintainable. The dismissal of the application by Ld. Trial Court culminated the prosecution proceedings whereby the prosecution's right to lead evidence was closed. In Uppal Credit & Investment Pvt. Ltd vs Ashwani Kumar CRM-M No.15173 of 2012 dated 22.03.2016 it was held by the Hon'ble Punjab and Haryana High Court that a revision petition lies against an order dismissing application u/s 311 Cr.P.C. and it was observed as under:-
"No doubt, the very provisions of Section 397 Sub-Section (2) of the Code have put up a rider that no such powers of revision either by the High Court or any Sessions Judge can be exercised in CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 29 of 37 relation to an interlocutory order which is undisputedly a statutory provision. It needs to be referred here that the very object of providing revision is to set right a patent defect or an error of jurisdiction or law. There has been disparity over the views expressed by various Courts as well as this Court whether an order passed under Section 311 of the Code is interlocutory in nature or not. Therefore, what is necessitated at this juncture is the very definition of 'interlocutory orders'.
It needs to be kept in mind as one of the very purposes of amendment and bringing about The Code of Criminal Procedure, 1973 was to do away with the powers of revision against interlocutory orders as it was found to be one of the contributing factors for delay and disposal of criminal cases. Though the very definition of 'interlocutory orders' is still defying comprehensive meaning due to studied silence in the Code and thus, over a period of time through various pronouncements based on dictionary meanings definition has come to crystallize and the Hon'ble Supreme Court of India in 'State Rep. by Inspector of Police and others v. N.M.T. Joy Immaculate' 2004(3) RCR (Criminal) 322 has dealt with the same based on various pronouncements from time to time including 'S.Kuppuswami Rao v. King' AIR 1949 FC 1; 'Madhu Limaye v. State of Maharashtra' AIR 1978 SC 47; 'Amar Nath v. State of Haryana' 1977(4) SCC 137; 'V.C. Shukla v. State' AIR 1980 SC 962 as well as latest pronouncement in the case of 'K.K. Patel v. State of Gujarat' 2000(2) RCR (Crl.) 863. Their Lordships were of the view that the feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, holding further in Madhu Limaye's case (ibid) that in such a situation, the real intention of the Legislature was not to equate the expression 'interlocutory orders' as invariably to be converse of the words 'final order'. Their Lordships were of the opinion that there may be an order passed during the course of proceedings which may not be final in the sense noticed in S.Kuppuswami Rao's case (ibid) but yet it may not be an interlocutory order, pure or simple, and thus some kinds of orders may fall in between the two and therefore, were of the view that the power contained in Sub-Section (2) of Section 397 of the Code was not meant to be attracted to such kinds of intermediate orders. While taking into consideration the judgments in Amar Nath's case; Madhu Limaye's case; V.C. Shukla's case (ibid), in 'Rajendra Kumar Sitaram Pande v. Uttam' 1999 AIR (SC) 1028, the Hon'ble Apex Court expressing that the expression 'interlocutory order' under Section 397(2) of the Code CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 30 of 37 has been used in a restricted sense and not in a broad artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the rights of the parties cannot be said to be an 'interlocutory order', and therefore, on the basis of previous pronouncements of the Hon'ble Supreme Court it was held that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in order to ensure complete fairness of the trial and that the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final.
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.
Chapter XXIV of the Code relates to 'General Provisions as to Inquiries and Trials'. Thus, any grievance of a party at the trial, if not taken care or at the earliest appropriate stage before pronouncement of the final judgment, may lead to an innocuous situation after final conclusion of the trial as even in an appeal against such judgment, such an error which might have creeped in on account of denial or allowing of such a relief under Section 311 of the Code may not be rectified. Even by the exercise of powers under Section 391 of the Code not only delay will occasion but may also create more complications as procedure under Chapter XXIII of the Code again has to be followed. Therefore, the proposition so propounded that though every interlocutory order is an interim order but each and every interim order could not be an interlocutory order. Thus, it would be appropriate that a revisional Court exercising supervisory jurisdiction can positively correct an order which has some element of finality and, to some extent, has resultant effect on subsequent proceedings at the Court, and therefore it need not necessarily be an order which finally culminates the proceedings that can be termed to be amenable to revision and which intermediatory effect may be rectified which could enable revisional Court to entertain by way of revision against such a CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 31 of 37 finding.
Though on behalf of learned counsel for the petitioner, reliance has been placed on 'Sethuraman v. Rajamanickam' 2010(5) RCR (Criminal) 512 wherein, such an order was held to be an interlocutory order by the Hon'ble Supreme Court and so by various High Courts in 'Asif Hussain v. State of U.P. and Another' 2007(3) CCR 233; 'Jagir Singh Sidhu v. Harbeant Singh' 2003(3) RCR (Criminal) 631; 'Karam Singh v. Ram Singh and others' 1995(3) RCR (Criminal) 143; 'Baba Kashmira Singh v. Mahindra & Mahindra Financial Services Ltd.' 2014(15) RCR (Criminal) 150; 'Sanjay and another v. State of Haryana and another' 2005(1) RCR (Criminal) 15; 'Ms. Rashidan and others v. Baaz Ali' 2002(3) RCR (Criminal) 557; 'T. Stanes and Company Ltd. Coimbatore v. Thiru, M.G. Mohamed Iqbal and another' 2007 CriLJ 4100; 'State v. Smt.Indirakumari and others' (2003) CriLJ 4749 and 'Rajendra Prasad Bajpai v. State of UP' 2014(87) ACrC 13 and to the reverse are various pronouncements of different High Courts in 'R.Srinivasan & others v. G. Shanmugha Vadivu' 1984 CriLJ 377; 'Deborah Mary Crasto Leclerc v. Patrick Oliver Leclerc' 2015(3) RCR (Criminal) 876; 'Narcotics Control Bureau v. Yuvraj Gurang and another' 2006(4) RCR (Criminal) 657; and 'State of Sikkim v. Sri Thukchuk Lachungpa and another' 2005 CriLJ 201, which have held that the orders passed under Section 311 of the Code are amenable to revision.
In a recent view of the Hon'ble Apex Court in the case of 'Urmila Devi v. Yudhvir Singh' 2013(4) RCR (Criminal) 899 their Lordships have delved deep into the subject matter as to what is an interlocutory order and the powers of revision of the Courts in terms of Section 397(2) of the Code, where different ratios and pronouncements by the Hon'ble Supreme Court were taken note of including that of 'Adalat Prasad v. Rooplal Jindal' 2004(4) RCR (Criminal) 1, wherein the ratios laid down in Amar Nath's case; Madhu Limaye's case; V.C. Shukla's case and Rajendra Kumar Sitaram Pande's case (ibid) too were taken into consideration. Thus, holding that where an order is an intermediatory order a revision certainly lies.
It needs to be further clarified that in the present case, the complainant has sought indulgence of the trial Court enabling it to examine witnesses under Section 311 of the Code who could throw light on the dispute between the complainant and the accused and which prayer stood declined and therefore, it makes sufficiently clear that it would finally conclude the proceedings of the complainant and that the complainant has been denied a CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 32 of 37 legitimate valuable right to put before the Court his case which could also assist the Court in coming to a judicious comprehensive adjudication of the same. The denial of this certainly has robbed the complainant of a chance to put forth his case in the right perspective and in not doing so, a material prejudice has been caused to him and which might lead to an unfavourable situation in the ultimate which can, by no means, be rectified at a subsequent stage before the higher Courts. Thus, it would be appropriate to test the reasonableness of such an order at the earliest possible stage as it would be a fair inquiry into the allegations and otherwise would lead to more complications for the parties in their endeavour to pursue the goal of justice."
34. In Madhu Limaye (supra) while dealing with the meaning of "interlocutory order" it was observed as under:-
"10. As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of the High Court was resorted to in relation to inter- locutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2), in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 33 of 37 of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code. the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code. even assuming.
although not accepting, that invoking the revisional power of the High Court is impermissible.
.........
12. 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 part. The meaning of two words must therefore be considered separately in relation to the particular purpose for which it is CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 34 of 37 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 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."
13. In S. Kuppuswami Rao v. The King(1) Kania C. J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. Lord Esher M. R. said in Salaman v. Warner(2) "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time, there was no bar like section 397 (2) was not a "final order" within the meaning of section 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words 'interlocutory order" occurring in section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(1). On such a 'strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 35 of 37 appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the, 1898 Code. In what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies ? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River Wear Commissioners v. William Adamson(1) and R. M. D. Chamarbaugwalla v. The Union of India ( 2) that although the word occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. 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, 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. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course."
35. Therefore, in view of above discussion, the revision CR No. 26/2025 CBI vs. Mohd. Salim Khatri Page No. 36 of 37 petition stands allowed. The impugned order is set aside. The revisionist/CBI is at liberty to examine the witnesses as proposed in its application u/s 311 Cr.P.C. which was dismissed vide impugned order. Needless to say that considering the fact that matter is almost 2 decade old, prosecution shall make all endevours to examine its witnesses and conclude the evidence at the earliest. Steps be taken immediately for summoning the witnesses before Ld. Trial Court.
36. With these observations the revision petition stands disposed of.
37. Revision petition file be consigned to record room. TCR be sent back to the court concerned immediately.
Announced in the open court
on 3rd of September 2025 Digitally signed
GAURAV by GAURAV RAO
RAO Date: 2025.09.03
15:01:18 +0530
(GAURAV RAO)
SPECIAL JUDGE (CBI-01)
ROUSE AVENUE COURT COMPLEX
NEW DELHI
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