Sheshayya Ganguli and Others vs State

A.S. Pachhapure, J.—The petitioners have challenged the order passed by the Presiding Officer, Fast Track Court, Bangalore, allowing the revision petition and permitting the respondent/State to produce document on an application filed u/s 311 read with Section 242 of the Criminal Procedure Code, 1973.

The facts reveal that the petitioners herein are the accused in C.C. No. 7279 of 2003 pending on the file of the Additional City Metropolitan Magistrate, Bangalore and are facing trial for the offences punishable u/s 498A read with Section 34 of the Indian Penal Code, 1860 and under Sections 3 and 4 of the Dowry Prohibition Act, 1961.

During the pendency of the trial, the Prosecutor moved an application u/s 242 of Cr.P.C. seeking permission to produce certain documents and another application u/s 311 of Cr.P.C. requesting to recall P.W. 2 for his further examination. The Trial Court rejected both the applications by order dated 24-11-2009. Aggrieved by the said order, the State preferred a revision petition before the Sessions Court in Cri. R.P. No. 83 of 2010. The learned Presiding Officer has allowed the petition granting permission to produce the documents and also to recall the witness. Aggrieved by the order of the Revisional Court, the petitioners/accused have filed this revision petition.

I have heard the learned Counsel for the petitioners and also the Government Pleader.

So far as the perusal of the application filed u/s 311 of Cr.P.C. is concerned, it is stated in the application that 8 witnesses have been examined on behalf of the prosecution and P.W. 2 has been already examined and that P.W. 2 has produced documents and a list of the documents is annexed to the said application. Furthermore, an affidavit has been filed by the father of P.W. 1 viz., P.W. 2 stating that an amount of Rs. 1,00,000.00 and another amount of Rs. 3,00,000.00 were withdrawn through the savings bank account for payment of the amount to the 2nd accused.

In the application filed u/s 311 of Cr.P.C, prayer has been made in the affidavit to recall P.W. 2 for further examination and in the affidavit filed in support of the said application, P.W. 2 intends to produce certain documents including the extract of the savings bank account register and the certified copy of the order passed in Cr. P. No. 3883 of 2002. The learned Magistrate by assigning reasons rejected the applications, whereas the learned Sessions Judge has allowed the revision by permitting to produce the documents and granting leave to recall the witness.

The learned Counsel has relied upon the decision of the Hon''ble Apex Court in Sethuraman Vs. Rajamanickam, , wherein the Apex Court held that the order u/s 311 of Cr.P.C., which are sought to be revised is an interlocutory order, a revision is not maintainable.

It is relevant to note that aggrieved by the order passed by the learned Magistrate on the application under Sections 242 and 311 of Cr. P.C, a revision is preferred before the Sessions Judge. The said revision petition is not maintainable in law. Furthermore, the Hon''ble Apex Court''s decision in M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, , held that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. It is relevant to note that during investigation it was the duty to collect the documents which are essential for the purpose of the trial and the prosecution has an opportunity to produce the documents before the examination of the witnesses. Further, there was a direction by this Court to dispose of the case expeditiously on two occasions and the matter is pending before the Trial Court since from the year 2003. At the fag end, an application came to be filed by the Prosecutor, seeking permission to produce the documents and also to recall P.W. 2. When against an order u/s 311 of Cr.P.C. or u/s 242 of Cr.P.C, a revision cannot be maintained, the Fast Track Court ought not to have allowed the revision. If it is in the interest of justice or otherwise, the party is at liberty to file a petition u/s 482 of Cr.P.C., and not a revision u/s 397 of Cr.P.C. In that view of the matter, I am of the opinion that the order of the lower Court in revision granting permission to produce the documents and to recall the witness is illegal and not permissible. Hence I proceed to pass the following:

ORDER

The revision petition is allowed and the order passed by the learned Sessions Judge in Cr. R.P. No. 83 of 2010, dated 6-4-2010 is set aside.