Learned counsel for the respondents submits that refusal of the trial Court to issue summons to the witness of respondent has almost decided the fate of the complaint filed by the respondent against the applicant and others and, therefore, the order of the trial Court directing closure of evidence of the prosecution cannot be said to be interlocutory. He also submits that sufficient opportunity was not given to the complainant to produce his witnesses and on this ground also, the impugned order cannot be seen to be illegal or arbitrary.
However, in the present case the facts are quite different. The nature of order has to be determined with reference to the impact it would have on the vital questions involved in a dispute and if it is found that the order would have the consequence of deciding the fate of the complaint filed by the complainant and acquittal of the accused would be a forgone conclusion because of the order, the order cannot be said to be interlocutory in nature and it would have to be termed as an order deciding finally the dispute between the parties.
Bombay High Court
Sunil S/O Brijlal Chanchlani vs State Of Maharashtra, Through ... on 9 March, 2015
Bench: S.B. Shukre
Citaion:2016 ALLMR(CRI)2351
4. By this application, the order dated 10 th March, 2014, passed by the Additional Sessions Judge-7, Nagpur in Criminal Revision No.464/2012, thereby directing the trial Court to issue witness summons to the witnesses as per the list given in the application vide Exh.-92 and record their evidence has been challenged.
5. The first objection of the applicant Mr. Sunil Chanchlani, who appears in person before this Court is that the revision application directly filed by the complainant without leave of the Court was not maintainable. No doubt, the leave of the Court for filing criminal revision application directly by the complainant was not sought. But, this objection was never taken before the Revisional Court and, therefore, now, it would not be permissible for the applicant to take this objection before this Court, unless it can be shown by the applicant that failure of justice has been occasioned by the impugned order. The applicant, however, has not shown or demonstrated that there has been miscarriage of justice because of the impugned order and, therefore, now the applicant cannot be heard on these objections.
6. The second objection of the applicant is that the revision itself was not maintainable before the Sessions Court because the discretion exercised by the trial Court in not calling some of the persons, who were cited as witnesses by the complainant was exercised properly and sufficient opportunity had already been granted to the complainant to prove his case and that in any case the discretion so exercised of the trial Court was in the nature of an interlocutory order. In support, the applicant places his reliance on the case of Amar Nath and others vs. State of Haryana and others, reported in 1977 AIR 2185 SC. He also places his reliance on the case ofSethuraman vs. Rajamanickam, reported in (2009) 5 SCC
153.
7. Learned counsel for the respondents submits that refusal of the trial Court to issue summons to the witness of respondent has almost decided the fate of the complaint filed by the respondent against the applicant and others and, therefore, the order of the trial Court directing closure of evidence of the prosecution cannot be said to be interlocutory. He also submits that sufficient opportunity was not given to the complainant to produce his witnesses and on this ground also, the impugned order cannot be seen to be illegal or arbitrary.
8. In the case of Amar Nath and others (supra), Hon'ble Apex Court has held that when second revision before the High Court against the order of the subordinate judge is barred under Section 397(2) Criminal Procedure Code the power of the High Court under Section 482 of the Criminal Procedure Code cannot be invoked or otherwise it would amount to achieving something which is not otherwise possible under the express provisions of law.
9. In the instant case, the application under Section 482 of the Criminal Procedure Code has not been filed by the respondent Nos.2 and 3 but by the applicant, who is an accused in a case initiated against him at the instance of the said respondents and the revision before the Sessions Court was preferred by the said respondents.
Therefore, the law laid down in the case of Amar Nath (supra), would have no application to the instant case. It would also have no application to the revision filed before the Court of Additional Sessions Judge for the reason that it was the first revision filed by the respondent.
10. In the case of Sethuraman (supra) Hon'ble Apex Court has held that since the trial Court had refused to call the documents and also rejected the application under Section 311 of the Criminal Procedure Code, both the orders were interlocutary in nature and as such the revision against those orders was barred under Section 397(2) of the Criminal Procedure Code. The Hon'ble Apex Court while holding so, took into account the peculiar facts of that case and found that the orders impugned therein did not decide anything finally and, therefore, in those peculiar facts and circumstances held that the orders were interlocutory in nature and as such bar under Section 397(2) of the Criminal Procedure Code was applicable.
However, in the present case the facts are quite different. The nature of order has to be determined with reference to the impact it would have on the vital questions involved in a dispute and if it is found that the order would have the consequence of deciding the fate of the complaint filed by the complainant and acquittal of the accused would be a forgone conclusion because of the order, the order cannot be said to be interlocutory in nature and it would have to be termed as an order deciding finally the dispute between the parties. To my mind, the ratio of Sethuraman's case is not in what has been seen as interlocutory order but in what is the criterion applied for determining the order as an interlocutory order. The interlocutory order is the one which does not finally decide the dispute between the parties and this is the ratio of Sethuraman's case. Thus, I find that by applying the ratio of the case of Sethuraman, the impugned order in the instant case can be viewed as not the interlocutory order but the order having its impact on the finality of the dispute between the parties and, therefore, the impugned order was revisable in nature.
11. Now, on merits of the case, I find that the revisional Court has properly found that no sufficient opportunity had been given to the complainant to examine his witnesses and looking to the nature of evidence that was sought to be adduced by the complainant, the learned Additional Sessions Judge has rightly found that further opportunity was required to be given to the complainant to adduce evidence and that was so necessary for reaching a just decision in this case. Therefore, the impugned order cannot be seen to be as perverse or arbitrary or against well settled principles of law and as such no interference with the same is called for.
12. In the result, the application stands dismissed.
JUDGE
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