Delhi District Court
Sonu @ Kalia vs The State on 27 August, 2019
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
Cr. Revision No. 524/2019
SONU @ KALIA
S/o LATE SHRI DHARAM SINGH
R/o HOUSE No. 10613, GALI No. 6,
PRATAP NAGAR, GULABI BAGH, DELHI
.....REVISIONIST
VERSUS
THE STATE
... ..RESPONDENT
Date of filing : 27.08.2019
First date before this court : 27.08.2019
Arguments concluded on : 27.08.2019
Date of Decision : 27.08.2019
Appearance : Shri Sachin Aggarwal, counsel for revisionist
J U D G M E N T (O R A L)
1. Revisionist, facing trial for offences under Section 379/356/394/323/34 IPC has challenged order dated 27.05.2019 of the learned Magistrate whereby application of the revisionist under Section 311 CrPC in a 12 years old trial was allowed subject to cost. As is obvious, what is challenged by the revisionist is only the imposition of Cr. Revision No. 524/2019 Page 1 of 8 pages Sonu @ Kalia vs State cost and not recall of prosecution witnesses on his application. At the very outset, learned counsel for revisionist was called upon to address arguments on maintainability of this revision petition in the light of provision under Section 397(2) CrPC. I have heard learned counsel for revisionist.
2. It is argued on behalf of revisionist that the impugned order is a final order and not interlocutory order since imposition of cost has been made by the learned magistrate a precondition to recall certain witnesses of prosecution and if the revisionist does not pay cost, the witnesses cannot be cross examined by him. It is also submitted by learned counsel for revisionist that the recalled witnesses had been examined in the years 2017 to 2019. No other argument has been addressed.
3. 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 Cr. Revision No. 524/2019 Page 2 of 8 pages Sonu @ Kalia vs State 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 subsection and of section
398. (2) The powers of revision conferred by subsection (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.
4. 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". Subsection (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 delays in the decision of the criminal cases, in order to ensure fair and expeditious trial.
5. 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, Cr. Revision No. 524/2019 Page 3 of 8 pages Sonu @ Kalia vs State 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.
6. 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.
7. 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 wellnigh 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, 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 Cr. Revision No. 524/2019 Page 4 of 8 pages Sonu @ Kalia vs State 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)
8. 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 subsection (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 subsection (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 interlocutory order.
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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 wellnigh 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) Cr. Revision No. 524/2019 Page 6 of 8 pages Sonu @ Kalia vs State
9. In the backdrop of above cited law, the test to determine as to whether the impugned order in the present case is interlocutory order (and thereby hit by Section 397(2) CrPC) or the same is intermediate order (and thereby amenable to the revisional jurisdiction of this court), the test is as to whether setting aside the impugned order would lead to termination of proceedings and if so, the impugned order cannot be held to be interlocutory order.
10. As mentioned above, by way of impugned order, application of the revisionist under Section 311 CrPC was allowed and the only part challenged by the revisionist is imposition of cost. If the order impugned in the present case (whereby application of the revisionist under Section 311 CrPC to recall prosecution witnesses was allowed subject to payment of cost) is set aside, the result would be recall of all those witnesses of prosecution without payment of cost and not termination of proceedings. That being so, in my considered view the impugned order 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 imposition of cost 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.
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11. 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.
12. In view of above discussion, it is held that the impugned order being interlocutory order is not amenable to revisional jurisdiction of this court. Consequently, the revision petition is dismissed.
13. A copy of this judgment be sent to the learned trial court and file be consigned to records.
Announced in the open court on this 27th day of August, 2019 (GIRISH KATHPALIA) District & Sessions Judge (HQs) Tis Hazari Courts Digitally signed Delhi 27.08.2019 (a) by GIRISH KATHPALIA GIRISH Date:
KATHPALIA 2019.08.27
15:12:53
+0530
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