Karam Singh vs Ram Singh and others

V.S. Aggarwal, J.

This is a revision petition directed against the order passed by the Judicial Magistrate 1st Class, Gohana dated 17.10.1994. By virtue of the impugned orders the learned trial Court dismissed the application filed by the prosecution. It had prayed for recalling Dr. S.C. Nawal and Investigating Officer as witnesses.

A case had been registered against Ram Singh and 4 others with respect to offences punishable under Sections 323/324/34/506 Indian Penal Code. During the course of trial learned Judicial Magistrate closed the evidence of the prosecution on 16.8.1994. This led to the filing of the petition by the prosecution under section 311 of the Code of Criminal Procedure to recall two witnesses referred to above. Learned trial Court vide the impugned order dismissed the application. Hence the present revision petition.

I have heard learned counsel for the petitioner as well as that of the respondents

The short question that came up for consideration is as to if the revision petition against the impugned order is maintainable or not. Subsection (2) to Section 397 of the Code of Criminal Procedure reads as under :

"397(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 proceedings."

It is apparent from aforesaid that while no revision petition is maintainable against an interlocutory order, but legislature in its wisdom did not in so many words explain as to what would be an interlocutory order. An order passed in daytoday working which is a step taken towards the disposal of the case under consideration which does not materially affect the rights of the parties can well be taken to be an interlocutory order. One would hasten to add that it would not be possible to be exhaustive in this regard. Facts of each case have to be considered in relation to the order that has been passed. It is thereafter that one can conclude that if it is all interlocutory order or not.

The Division Bench of Jammu & Kashmir High Court in the case of S.K. Mahajan and etc. v. Municipality, Jammu and others, 1982 Criminal Law Journal 646 considered an identical provision under Jammu & Kashmir Criminal Procedure Code, 1989. In Paragraph 14, the Court held as under :

"No party has a right to have a witness examined under Section 540. It can only draw the attention of the Court by making a prayer to that effect. Whether or not a witness is to be examined under this section, the discretion entirely lies with the Court, though it may be obligatory on its part to summon the witness in case his evidence appears to it to be essential for the just decision of the case. Nevertheless, it is the requirement of the Court and not that of the party to see whether on not a witness is to be examined. Viewed thus, an order granting or refusing the prayer of a party to have a witness examined under section 540 cannot be said to have determined any right of the parties and consequently fails to acquire the flavour of a final order. It is an interlocutory order, pure and simple."

In other words, it was concluded that order refusing to summon a witness would be an interlocutory order.

Two decisions of this Court also lend support to the same view that it is an interlocutory order against which a revision petition will not be maintainable. This was the view expressed in the case of Raghbir Singh and Anr. v. State of Haryana, (1988(2) Recent Criminal Reports 578) : 1988(1) Current Law Journal 301 and also in the case of V.P. Gureja v. Jagdish Chander Raheja, 1988(2) Recent Criminal Reports 179 .

There is no ground to take different view and it flows from the above that the impugned order was an interlocutory order against which revision petition will not be maintainable.

That being the position, it becomes unnecessary to examine the other pleas of the petitioner.

For these reasons, revision petition must fail and is dismissed.