Delhi District Court
Krishan Kumar vs State on 22 May, 2024
Krishan Kumar Vs State
IN THE COURT OF MANU GOEL KHARB:
SPECIAL JUDGE (NDPS-02) SOUTH WEST DISTRICT
DWARKA COURTS:NEW DELHI
Criminal Revision No. 1869/2024
In the Matter of :
Krishan Kumar
S/o Sh. Jawahar Lal
R/o 138, Palia Devapur,
Sultanpur, Uttar Pradesh.
....Petitioner
Versus
State
Through SHO
P.S. Janakpuri, West Delhi.
....Respondent
Date of Institution of the revision : 02.05.2024
Date of Arguments : 17.05.2024
Date of Judgment : 22.05.2024
JUDGMENT:
1. The instant petition under section 397 read with section 400 Cr.P.C. is filed by the revisionist against the impugned order dated 02.02.2024 passed by the court of Ms. Bharti Beniwal, Ld. Metropolitan Magistrate-11, South West District, Dwarka Courts, Delhi, arising out Cr. Case 27000/2018 in State Vs Krishan Kumar, FIR no. 219/2017, P.S. Jankpuri, whereby the application of the revisionist CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 1 of 8 Krishan Kumar Vs State under section 311Cr.P.C. for recalling PW4 for cross examination was dismissed.
2. It is stated by the Ld. Counsel for the revisionist that PW-6 IO/SI Yaad Ram was examined as prosecution witness on 01.10.2022 and in his cross examination, he deposed about the place where the accident took place as well as sequence of the said accident and PW-6 also gave answers to the questions related to the presence of eyewitness at the spot of accident. Ld. Counsel submits that the alleged eyewitness Rajan was examined and discharged as PW-4 on 12.04.2022 and PW-4 is necessary to be recalled for rebuttal of the testimony of PW-6. It is stated that non examination of PW-6 would be detrimental to the case of accused and as such it is prayed that the order dated 02.02.2024 of the court of Ld. MM-11 be set aside and opportunity be given to the revisionist to cross examine PW-4.
3. After hearing arguments, the Ld. Trial Court dismissed the application under section 311 Cr.P.C. moved by the accused. Feeling aggrieved by the impugned order dated 02.02.2024, the revisionist/accused filed the present petition.
4. Revisionist/accused has assailed the order of Ld. Trial Court on the grounds that :-
CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 2 of 8Krishan Kumar Vs State
(i) Ld. Metropolitan Magistrate failed to appreciate the well settled position of law governing Section 311 Cr.P.C., wherein the sole purpose is to secure truthfulness in the case so as to reach a just decision of the case.
(ii) It is further alleged that there are discrepancies in the version of eye witness PW4 Sh. Rajan and PW6 IO/SI Yad Ram, who was examined on a later date and in order to bring out clarifications, it is necessary that PW4 be recalled and re-examined.
(iii) It is further alleged that PW4 might be a planted witness since the prosecution has only produced one eye witness to the accident which occurred in broad day light and PW4 stated in his statement that there were other persons on the spot who took the victim to the hospital.
(iv) It is further alleged that site plan prepared by the Investigating Officer is confirmed by PW4 in his testimony, however, the same is inaccurate and apparently faulty.
5. On the other hand, it is submitted by the Ld. Addl. P.P. for the State that the present revision petition is not maintainable as the order under section 311 CRPC is an interlocutory order. He further submits that there is no illegality or infirmity in the order passed by the Ld. Trial Court and none of the grounds raised in the revision is sustainable in the eyes of law. He further argued that the accused has moved the application under section 311 Cr.P.C. just to delay the proceedings and the re-examination of the CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 3 of 8 Krishan Kumar Vs State witness is not essential for the just decision of the case. Ld. Addl. P.P. for the State has relied on Hanuman Ram Vs State of Rajasthan & Ors (2008) 15 SCC 652 and prayed that revision petition be dismissed.
6. I have heard the submissions made by the Ld. Counsel for the revisionist/accused and Ld. Addl. P.P. for the State and perused the order dated 02.02.2024 as well as Ld. Trial Court Record.
7. Firstly, court will decide the legal objection taken by counsel for respondent to the maintainability of the application on the ground that impugned order dated 18.11.2023 is an order u/s. 311 Cr.PC and therefore, an interlocutory order and no revision can lie against it and only if revision petition is found to be maintainable, thereafter only it will be decided on merits.
8. The relevant provision of Section 397(2) Cr.P.C is reproduced herein below:
"Section 397. Calling for records to exercise powers of revision -
( 1 ) ................................. (2) The powers of revision conferred by sub-section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding".
9. In judgment titled as "Amarnath & Ors. Vs. State of Haryana", AIR 1977 SC 2185 passed by Hon'ble CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 4 of 8 Krishan Kumar Vs State Supreme Court of India, while discussing the term interlocutory order, Hon'ble Supreme Court ruled that the term "interlocutory order" in Section 397 (2) Cr.P.C. has been used in a restricted sense and not in any broad sense and include orders of a purely interim or temporary nature which do not decide or touch the important rights or 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 asto bar a revision to the High Court against the order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 CrPC.
10. Hon'ble Supreme Court of India after discussing the Amarnath Judgment (Supra) in "Girish Kumar Suneja vs. CBI" Crl. Appeal no. 1137 of 2017 arising out of SLP (Crl.) No. 9503 of 2016 has held at para 17 that 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.
CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 5 of 811. Further, Hon'ble Supreme Court of India defined an intermediate order as an order which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Hon'ble Supreme Court of India also gave examples of two such intermediate orders i.e. an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceeding against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges, if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in certain way, the proceedings would terminate but if passed in another way, the proceeding would continue.
12. It was further held 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. 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.
CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 6 of 813. In judgments "B.B. Lal Aggarwal vs. The State Govt of Delhi and Ors." Crl. M.C 953/2022 and Crl. M. A 4068/2022 decided on 04.04.2022 by Hon'ble High Court of Delhi, it is held at para 17 that "no revision lies against dismissal of an application filed under Section 311 Cr.PC" and "Situ Ramnath Shastri vs I.F.C.I. Factors Ltd" in Crl. M.C 586/2021, Crl. M. A. 2931/2021, Crl. M.C.590/2021 and Crl. M.A. 2948/2021 decided on 30.08.2022 by Hon'ble High Court of Delhi in which it is mentioned at para 13 that "It is trite law that an order passed under Section 311 Cr.PC is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr.PC. Consequently, the revision petitions preferred before Ld. ASJ were not maintainable and thus, the present petitions filed against the final outcome of the said revision petitions are again not maintainable.
14. Order passed under Section 311 Cr.P.C. is an interlocutory order and when it is reversed it does not result in the termination or culmination of proceedings against the accused. Appreciating the facts of this case, statues and in the backdrop of the above case laws it is evident that order u/s. 311 Cr.P.C. is purely interlocutory orders in so far as no right of accused pertaining to trial has been decided therein CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 7 of 8 Krishan Kumar Vs State and by virtue of Section 397 (2) Cr.P.C. no revision qua them can be filed.
15. No revision can be filed against the order passed under Section 311 Cr.PC, therefore, present revision petition is dismissed being non- maintainable.
16. Copy of this order be sent to the Ld. Trial Court along-
with TCR. Revision file be consigned to Record Room.
17. Revision file be consigned to record room after due compliance.
Digitally signed by Manu Goel Manu Goel Kharb Kharb Date: 2024.05.22 17:07:56 +0530 Announced in the open Court today i.e. 22.05.2024 (Manu Goel Kharb) Spl. Judge (NDPS-02) Dwarka Courts, New Delhi CR no. 1869/2024 CNR No.DLSW01-004251-2024 Page 8 of 8