K. Arul Marceline vs Thomas Koshy

Honourable Mr. Justice P.R. Shivakumar

Heard both sides. This Criminal Revision Case has been filed against an order dismissing the petition filed by the petitioner herein, who is the sole accused before the trial court namely, the Court of Judicial Magistrate No. 2, Nagercoil, in STC No. 37 of 2008. On the file of the said court, evidence was led by the respondent herein namely, the complainant by producing affidavit to be used as his evidence in chief examination. The petitioner/accused, who had the opportunity of cross examining another witness examined on the side of the complainant and in fact, used that opportunity, did not use the opportunity of cross examining the respondent, even though he did appear as directed by the court for presenting himself for cross examination. In fact the petitioner took around 10 adjournments for cross examining the respondent/complainant. As the opportunity given to him was not utilized by the petitioner/accused, the learned Judicial Magistrate No. 2, Nagercoil chose to close the evidence on the side of the complainant and questioned the petitioner herein/accused u/s 313(1)(b) Cr.P.C of the Code of Criminal Procedure, drawing the attention of the revision petitioner/accused to the incriminating materials available in the evidence adduced on the side of the complainant. After taking time for leading evidence through defence witnesses, the petitioner/accused chose to file Crl.M.P. No. 1535 of 2010 on the file of the trial court contending that the affidavit filed by the respondent herein as PW1 to be accepted as his evidence in chief examination was not sworn before any one of the authorities mentioned in section 297 Cr.P.C. and that hence, the affidavit should be rejected and the evidence of the complainant recorded by the court below in chief examination should be scraped.

The learned trial Judge, adverting to the facts of the case and the fact that the petitioner taken as many as 10 adjournments for cross examining the complainant based on the proof affidavit filed by him and had suffered an order closing the evidence of the complainant without the complainant being cross examined, observed that the accused did approach the trial court with a sinister motive of dragging on the case as long as possible after the examination of the petitioner/accused u/s 313(1)(b) of Cr.P.C. was over. The court below has also observed that the petitioner/accused accepted that the affidavit filed by the respondent/complainant was rightly accepted as his evidence in chief examination.

An order of the trial court either admitting or rejecting a piece of evidence cannot be said to be a final order or an order not being an interlocutory order. Essentially, it is an interlocutory order. Therefore, the order under challenge is essentially not an order other than an interlocutory order and hence, the embargo provided for the exercise of the revisional powers conferred on this court as per sub section (2) of section 397 Cr.P.C shall stand attracted. Even for considering the revision as a proceeding initiated with the intention of invoking the inherent powers of this court, the laches on the part of the petitioner and the acquiescence on his part provide stumbling block and it shall not be a proper and appropriate case in which this court can exercise its inherent power u/s 482 Cr.P.C also taking the present Criminal Revision Case as a petition invoking the inherent powers.

This court also points out the fact that when the respondent counsel wanted to give his consent for setting aside the order under challenge on condition that the petitioner should give assurance for the completion of the cross examination after he would submit a fresh affidavit, the response from the petitioner''s side was in the negative. Therefore, this court is of the view that if an order setting aside the impugned order of the court below is passed and the evidence already recorded is scraped, the same will amount to paving the way for abuse of process by the petitioner and on that ground also, this court has to decline any relief using its inherent power u/s 482 Cr.P.C. in this criminal revision case. Accordingly, holding that the criminal revision case is not maintainable and also holding that it is not a case fit for conversion of the same into a challenge made u/s 482 Cr.P.C invoking the inherent powers of the High Court, this court decides to dismiss the Criminal Revision Case. Accordingly, this Criminal Revision Case is dismissed.