Surinder Singh vs State of Harayana

S.S. Sodhi, J.

On November 1, 1985, a first information report was lodged against the petitioner Surinder Singh, on the statement of Smt. Santosh Malhotra, Headmistress of the Government High School, Ghatauli, the case being under Sections 186, 353 and 506 of the Indian Penal Code. When the case went up for trial, the evidence of two Witnesses, namely. P.W.2 Jowala Singh and P.W.3 Tara Chand were recorded on February 12, 1987. Both these witnesses were declared hostile and were then crossexamined by the public prosecutor. The case was thereafter adjourned for the recording of the evidence of the investigating officerSub Inspector Baljit Singh. As many as five opportunities were thereafter granted to the prosecution for the examination of this investigating officer. A last opportunity was granted to the prosecution for the examination of this witness when the case was adjourned to July 13, 1987. On this date, again SubInspector Baljit Singh was not present, his summons having been received back unserved. The trial magistrate, by his order passed on that day, closed the prosecution case and recorded the statement of the petitioner under Section 313 of the Code of Criminal Procedure, 1973 and then adjourned the case for arguments to July 27, 1987.

Sometime thereafter on the same day, that is July 13 1987, two applications were filed by the complainant Smt. Santosh Kumari Malhotra; one that the prosecution witnessess Jowala Singh and Tara Chand be summoned as courtwitnesses, as on the last date of hearing they had managed to get the case taken up for bearing without the case being properly called out and her counsel could not, therefore, appear when the witnesses were examined and the learned public prosecutor could not notice that they had given false evidence. Further, it was said that they were required to be summoned as courtwitnesses to prove their taperecorded statement to show that they had both given false evidence. The second application was with regard to the investigating officer SubInspector Baljit Singh namely; that non bailable warrants be issued to secure his presence for the next date of hearing. Both these applications were dismissed by separate orders passed by the trial magistrate on that very day.

The challenge now is to the order of the Sessions Judge, Jind of August 26, 1987 setting aside both the orders of the trial magistrate one relating to the prosecution witnesses Jowala Singh and Tara Chand and the other with regard to the issuance of non bailable warrants against the investigating officer. A direction being issued thereby that the prosecution be given a reasonable opportunity to further cross examine the said Jowala Singh and Tara Chand and also to summon Inspector Baljit Singh.

Mr. H.S. Hooda, counsel for the petitioner has, at the very outset, raised a preliminary objection to the maintainability of the revision petition under Section 397 (2) of the Code of Criminal Procedure, 1973, by contending that the order of the trial magistrate were patently interlocutory and no revision petition in thus lay against them and the order of the Sessions Judge could not, therefore, be sustained. Cited in support was the judgment of Chief Justice S. S. Sandhawalia in Chander Bhan v. State of Haryana, 1979 CLR 253. The case there pertained to the order of the trial magistrate allowing the production of additional evidence by the prosecution. It was held that an order of the nature passed in that case with regard to the examination of additional evidence or otherwise was patently an interlocutory one and the bar of Section 397 (2) of the Code of Criminal Procedure 1973 was, therefore, clearly attracted to it. This view was followed by this Court in Dalip Singh alias Daljit Singh and anr. v. The State of Punjab, 1986(1) C.L.R 195, which again was with regard to an order refusing to summon additional evidence.

Such thus being the settled position in law, there can be no escape from the conclusion that by their very nature, both the impugned orders of the trial magistrate cannot, but be branded as interlocutory and this being so, the bar of Section 397 (2) of the Code of Criminal Procedure, 1973 clearly operates. The impugned order of the Sessions Judge, in revision, cannot, therefore, be sustained.

On merits too, neither of the impugned orders of the trial court warrants any exception. The prayer for recalling the witnesses Jowala Singh and Tara Chand was made after over five months of their examination and during this period, there had been five hearings in the case. No explanation for this delay is forthcoming.

As for the closing of the prosecution case, it has to be appreciated that what the prosecution is entitled to is to a reasonable opportunity to adduce its evidence, but not unlimited opportunities without end. Denial of further adjournments to the preception, in this case, after it had already availed of five such opportunities hardly justifies any interference on its behalf. Thus on merits too, the orders of the trial magistrate were fully justified

The impugned order of the Sessions Judge, is accordingly hereby set aside and this petition is thus accepted.

Revision accepted