Delhi District Court
In Re vs State on 20 December, 2014
1
IN THE COURT OF MS. NEENA BANSAL KRISHNA, ASJ-01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Registration ID : 02403R0216322014
Criminal Revision : 88/14
In re :
Sh. S.P. Gupta
R/o K-115,
Hauz Khas,
New Delhi. .................. Revisionist
Vs.
1. State
(Govt. of NCT of Delhi) .................. Respondent.
Date of filing : 20.11.2014
Date of Arguments : 02.12.2014
Date of orders : 20.12.2014
APPEARANCES
Mr. Vijay Aggarwal : Ld. Counsel for the revisionist.
Mr. Salim Khan : Ld. Addl. PP for the State.
ORDER:
1. The present revision petition has been filed be the revisionist under Section 397 Cr.P.C., challenging the order dated 01.11.2014, passed by Ld. ACMM in case FIR No.90/2000.
2. The facts in brief, as stated in the present revision petition are that the revisionist has been implicated falsely in case FIR No.99/02, in which the chargesheet has been filed but the charge has not been framed till date. The matter is pending for consideration of various applications. It is stated that the S.P. Gupta Vs State 2 complainant had preferred an application under section 451/457/102 Cr.P.C. before the Ld. Trial Court for issuing directions for restraining the accused and others from using and taking any benefit from the shares which is alleged to be case property and the Ld. Trial Court issued notice to the accused persons on the application of the complainant vide order dated 03.07.2009. Reply to the said application was filed by the complainant who also raised the issue of maintainability of the said application filed by the complainant. Thereafter, various other applications have been filed raising various legal points which go to the root of the application of the complainant.
3. In the meanwhile, the applicants and other preferred to file a petition under Section 407 Cr.P.C. before the Hon'ble High Court seeking the transfer of FIR No. 90/2000, 99/2002, 148/02, 315/05, a complaint bearing no. 506/01 titled VLS Finance Ltd through Harsh Allagh Vs S.H. Siddiqui & Ors which are pending in the court of Ld. ACMM, Tis Hazari Courts, and a complaint case no. 2513/07, PS Malviya Nagar pending before the court of Ld. MM, Saket Court, to one court. The matter was listed before the Hon'ble High Court on 22.08.2014 and again on 29.08.2014. In the meanwhile, Ld. ACMM, vide order dt. 23.08.2014 refused to stay the proceedings and adjourned the matter to dispose of the application S.P. Gupta Vs State 3 under Section 451/457/102 Cr.P.C. It is submitted that the said impugned order was challenged before Ld. ASJ by way of revision petition and the said order was set aside by the Ld. ASJ, who issued directions for hearing the arguments on the application afresh. In the meanwhile, Hon'ble High Court issued directions with regard to the application of the complainant under Section 451/457/402 IPC vide order dt. 29.08.2014. The Ld. Trial Court vide impugned order dt. 01.11.2014, without considering the provisions of law and without following the law laid down by various courts, dismissed the application of the accused for adjournment and further fixed the matter for hearing of the application of the complainant only without considering the various applications and orders passed earlier. It is therefore submitted that the impugned order is liable to be set aside in terms of Rule-2 of Chapter-9 of Delhi High Court Rules, which provides that the Ld. Trial Court must not proceed with the matter till the transfer application under Section 407 Cr.P.C. is pending in the superior court. It is thus, submitted that the impugned order dt. 01.11.2014 is liable to be set aside and the Ld. Trial Court is liable to stay the proceedings till the disposal of the transfer application.
4. The notice of the revision petition was given to the State and the Ld. Counsel for the complainant also appeared in the S.P. Gupta Vs State 4 present revision petition. No formal reply has been filed on behalf of the complainant.
5. I have heard the arguments on behalf of both the parties and have perused the TCR. My observations are ss under : -
(i) The first grievance of the revisionist is that till disposal of the transfer application which is pending disposal before the Hon'ble Delhi High Court, the present proceedings have to be necessarily stayed in terms of the Rule-12 of Chapter-9 of Delhi High Court Rules. In order to appreciate this argument, it would be essential to reproduce Rule-12 of Delhi High Court which reads as under : -
Adjournment when a party wants to apply for transfer of a case - "The procedure to be followed when notice is given by any party of his intention to apply for the transfer of a case is laid down in sub Section (8) of Section 526 of the code and should be strictly followed. In view of the amendments made by Act no. 25 of 1955, it is obligatory for the court to adjourn the case so as to give the party a reasonable time to apply under Section 526 or under Section 528 of the code for the transfer of the case. An adjournment is not necessary where a second or subsequently notice is given by the same party of his intention to make an application to the same court or where an adjournment and a subsequent notice is given by any other accused.
Notwithstanding what has been said above, a Judge presiding in a court of sessions may refuse to adjourn the case if he is of the opinion that he party has had a reasonable opportunity of making an application and has failed without sufficient cause to take advantage of that opportunity (Section 526 (9).
Ordinarily a period of about 15 days is reasonable time to allow for the making of an application. When the court is satisfied that the application has been made and is pending it must adjourn the case until orders or intimation is received from the court to which the application has been made. Attention is invited to L.L.R. 1943 Lah. 331.
6. This Rule is in two parts. The first provides that whenever any S.P. Gupta Vs State 5 party expresses his intention to apply for transfer of a case, then it is obligatory for the court to adjourn the case for a reasonable time to enable such party to take necessary step for transfer of the said case. This clearly shows that what is required in case of any intention of filing of transfer application is that reasonable time must be given. This Rule further provides that an adjournment is not necessary where second or subsequent notice is given by the same party. It further provides that the Sessions court may refuse to adjourn the case if he is of the opinion that the party has had reasonable opportunity of making such application and has failed without sufficient cause to take advantage of that opportunity. Ordinarily, 15 days are considered to be reasonable. It is clearly discernible from the wording of this Rule that it only contemplates a reasonable opportunity of about 15 days being granted to party to move an application for transfer of the case.
7. Its second part provides that in case an application has been made and is pending, then the court must adjourn the case until "orders" or "intimation" is received from the court to which the application has been made. The Ld. Counsel on behalf of the Revisionist has vehemently argued that since the transfer application is pending before the Hon'ble High Court, then the matter has to be necessarily stayed. However, the terms which have been used in this Rule are "until orders or intimation is received". There are two different terms used i.e. "orders" or "intimation". This implies that this court may either receive orders or intimation. There is no denying S.P. Gupta Vs State 6 that the transfer application was listed before the Hon'ble High Court on 22.11.2014 and an application for stay of the proceedings before this court was agitated, but no stay was granted. This non-acceptance of prayer of stay of the proceedings before the Trial Court would very well fit within the term "intimation". The Hon'ble High Court in its wisdom, had declined to stay the proceedings before the Ld. Trial Court, this amounts to intimation to this court. Therefore, even in terms of Rule-12, there is no ground for stay of the present proceedings. The impugned order of the Ld. MM declining to stay the proceedings therefore, cannot be faulted.
8. The second grievance that has been agitated on behalf of the revisionist is that the Ld. Trial Court vide its impugned order, has fixed the matter for disposal of the application under Section 451/457/102 Cr.P.C., even though there are applications filed by the revisionist challenging the maintainability of this application. It is also argued that this application has been filed fraudulently. It is further argued that before deciding the two applications of the revisionist in regard to maintainability of this application which goes to its root, the application under Section 451/457/102 Cr.P.C. cannot be decided. Moreover, the Hon'ble High Court has only directed that this application has to be disposed of expeditiously and preferably within six months, if possible. It was argued that there is enough time for the six months to elapse; therefore the Ld. Trial Court cannot rush for deciding this application. On the other hand, it has been argued on behalf of the S.P. Gupta Vs State 7 respondent that the order of deciding the application is an interlocutory order and is not a subject matter of the revision petition. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect.
9. The term has been explained by the Supreme Court in Amarnath Vs State of Haryana, AIR 1997 (SC) 2189.
It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted 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 rights 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 proceedings, 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 as to be outside the purview of the revisional jurisdiction of the High Court.
10. The fixing of a matter for disposal of an application is purely an interlocutory order which is not determining the rights of either party and therefore, cannot be a subject matter of revision petition. Merely because the Ld. CMM has fixed the application under Section 451/457/102 Cr.P.C. for disposal, when earlier the matter was listed for arguments on the application S.P. Gupta Vs State 8 of revisionist challenging the maintainability of this application, cannot be termed as review of earlier order. Furthermore, the revisionist is at liberty to make a request for disposal of their two applications in regard to maintainability of the application under Section 451/457/102 Cr.P.C. alongwith the main application since they are all inter-connected. There is no merit in the present revision petition and the same is hereby dismissed.
11. TCR alongwith copy of this order be sent back to the Ld. Trial Court. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (NEENA BANSAL KRISHNA) TODAY i.e. 20.12.2014 ASJ-01/New Delhi District Patiala House Courts New Delhi(am) S.P. Gupta Vs State