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Judgment
B. Rajendran, J.—By consent of counsel for both sides, both the Criminal Revision Petitions are taken up for final disposal. These two
revision petitions are filed by the petitioners/A3 and A6 questioning the correctness of the orders dated 19.3.2012 passed by the Court below
dismissing the petitions in Crl. M.P. Nos. 136 and 137 of 2007 filed by them.
The petitioners have filed Crl. M.P. No. 136 of 2007 u/s 233 of Cr.P.C. praying to permit them to examine the Manager of the Lodge and to
direct him to produce all the relevant documents or records relating to incoming and outgoing of customers. Crl. M.P. No. 137 of 2007 was filed
praying to recall the witnesses P.Ws. 47, 48, 50, 39, 42, 43, 62, 10, 30, 3 and 4.
According to the petitioners the Manager of the Lodge is required to be examined and he has to be directed to produce the ledgers, cash book,
customers incoming and outgoing registers for the period between 1986-1987 and 1987-1988 to disprove the alleged offence of hatching criminal
conspiracy by unlawfully assembling in the Cheran Palace Lodge. Unless the records are produced through the Manager of the Lodge, they will be
highly prejudiced and could not disprove the case of the prosecution. Consequently, on production of such documents by the Manager of the
Lodge, the prosecution witnesses have to be recalled as the evidence recorded by the in-charge Judge, who presided by the Court below for a
short while, did not afford them opportunity to examine such witnesses.
According to the learned counsel for the revision petitioners, the Court below dismissed the applications filed by the revision petitioners only on
the ground of delay and laches by observing that the Sessions Case is pending for a long time and that the petitions have been filed to drag on the
trial. By summary dismissal of the applications, without assigning any valid reasons, the Court below refused to afford them an opportunity to
disprove the case of the prosecution. The witness namely the Manager sought to be examined and the documents required to be produced through
him are vital for disproving the case of the prosecution and therefore, the Court below ought not to have dismissed the applications by depriving
the opportunity to the petitioners.
The learned counsel for the petitioners relied on the decision of the Honourable Supreme Court in M/s. Bhaskar Industries Ltd. Vs. M/s.
Bhiwani Denim and Apparels Ltd. and Others, for the proposition that the High Court, while entertaining Criminal Revision Petitions, need not be
decided on the question of maintainability -whether the order passed is an interlocutory order or a final order without adverting to the merits of the
case.
Per contra, the learned Government Advocate appearing for the respondent/State would vehemently oppose the Criminal Revision Cases by
contending that the present Revision Petitions are vexatious and are intended to drag on the trial. According to the learned Government Advocate,
the case in Crime No. 1627 of 1988 came to be registered against the accused for the offences punishable under Sections 408, 409, 420, 468
and 471 of IPC based on the complaint given by the General Manager, Cheran Transport Corporation, Coimbatore. The case was transferred to
CBCID on 25.11.1988 for further investigation and after completion of investigation, the charge sheet was filed on 5.12.1990 against A-l to A-8.
The case was committed to the Court of Sessions as early as on 4.6.1992 in S.C. No. 77 of 1992. During the course of trial, 116 witnesses have
been examined, 809 Exhibits and 21 Material Objects have been marked by the prosecution. The prosecution side was closed on 21.4.2006. In
the meantime, after completion of cross-examination of the investigation officer, PW-116, the petitioners have filed Cril. M.P. No. 7 of 2005 u/s
311 of Cr.P.C. on 31.01.2005 to recall the prosecution witnesses 2 to 63 for cross-examination, which was allowed by the trial Court on
1.3.2005. Even though an opportunity was given by the trial court, the petitioners did not cross-examine P.Ws. 47, 48, 50, 39, 42, 43, 62, 10 and
While so, the petitioners again filed Crl. M.P. No. 117 of 2006 u/s 311 of Cr.P.C. on 18.7.2006 praying to recall certain witnesses for cross-
examination which was dismissed on 3.10.2006. Further, after completion of questioning u/s 313 of Cr.P.C. as early as on 21.7.2007, the
petitioners again filed Crl. M.P. Nos. 136 and 137 of 2007 and the same was dismissed by the Court below against which the present Criminal
Revision Cases have been filed. According to the learned Government Advocate, the petitioners have been given adequate opportunity to defend
themselves but they have not chosen to avail such opportunities. Further, the petitioners have not assigned any reason to examine the Manager of
the Lodge or the reason for production of certain documents through the Manager of the Lodge. The petitioners have also not specified the nature
of the documents or in what way those documents are helpful to them to defend the prosecution case. In the absence of the above, the Court
below has rightly dismissed the prayer of the petitioners. The learned Government Advocate also brought to the notice of this Court that another
accused namely A-2 has filed Crl. R.C. No. 149 of 1994 in which this Court, by order dated 7.3.1996, directed the trial court to expedite the trial
and dispose of the case at an early date in accordance with law. Inspite of such direction issued by this Court even on 7.3.1996, the case could
not be disposed of by the Court below as the petitioners/accused have successfully dragged on the case till date. Even otherwise, as per the
decision of the Honourable Supreme Court in Sethuraman Vs. Rajamanickam, the present Criminal Revision cases filed against interlocutory
orders are not maintainable and therefore also, the Criminal Revision Cases are liable to be dismissed.
I heard the counsel for both sides. At the outset, it has to be mentioned that the petitioners have filed Crl. M.P. Nos. 136 and 137 of 2007
before the Court below with much delay. The delay is unexplained besides not convincing. The Sessions Case No. 77 of 1992 is yet to be
disposed of due to multiple reasons, including the delay caused at the instance of the petitioners. As pointed out by the learned Government
Advocate, the prosecution side evidence was closed even on 21.4.2006. Earlier, the petitioners have filed Petitions for re-calling certain witnesses
in Crl. M.P. No. 7 of 2005 u/s 311 of Cr.P.C. on 31.1.2005 which were allowed by the Court below on 1.3.2005, but the petitioners have not
utilised the opportunity given to them to cross-examine the witness. When the petitioners have filed another Crl. M.P. No. 117 of 2006 on
18.7.2005 tore-call certain witnesses for cross-examination, the Court below dismissed it on 3.10.2006. In this fashion, the petitioners have
adequately contributed for the delay in disposal of the sessions case, which is pending from the year 1992.
Even on merits, when we look into the Crl. M.P. No. 136 of 2007 filed by the petitioners before the Court below, they have only stated this:
The petitioner submits that this Honourable Court has discharged the prosecution witnesses on 6.4.2006. P.Ws. 47, 48, 50, on 1.12.2006, P.Ws.
39, 42, 43, 62 and on 29.4.2006 P.Ws. 10, 30 capriciously.
The case has been called in the Court of Principal Subordinate Judge of Coimbatore which has been in charge of Court of the First Additional
Subordinate Judge of Coimbatore for a short while. Hence, the petitioner has not examined the witnesses and sought adjournment on the ground
that the Court has been in charge of 1st A.S.J. Of Coimbatore and it is a long drawn prosecution case having as many as 115 witnesses and nearly
1000 documents.
Hence opportunity to the accused cannot be denied by a Court which had taken charge for a while. The petitioner also intends to recall P.Ws.
Already a petition has been filed by the petitioners for recalling witnesses and it has been dismissed on the ground that list of witnesses has not
been furnished in the petition.
Hence, it is prayed that this Honourable Court may be pleased to recall the prosecution witnesses, P.Ws. 47, 48, 50, 39, 42, 62, 10, 30 and
P.Ws. 42, 43, 62, 10, 30 and P.Ws. and thus render justice.
This petition was opposed by the prosecution by filing a counter before the Court below and pointed out that even in the year 2006, the plea of
the petitioners for recalling P.Ws. 47, 48 and 50 was allowed by the Court below on 6.4.2006 but the counsel for A-3 has not chosen to cross-
examine those witnesses. Inspite of several opportunities given to the petitioners, they have not utilised those opportunities and have come forward
with this petition only to drag on the proceedings.
Similarly, Crl. M.P. Nos. 137 of 2007 was filed by the petitioners only with the averments mentioned below:
The petitioner submits that the petitioner intends to examine the Manager of Cheran Palace, Gopalapuram, Coimbatore and for productions of
Lodges Ledger, Cash Book, Customers incoming and out going registered maintained by them during the period 1986-1987.
Hence, it is prayed that this Honourable Court may be plead to permit the petitioner to examine the Manager of the Lodge and direct him to
produce all the relevant documents or records relating to incoming and outgoing of customers and thus render justice.
This petition was also opposed by the prosecution by filing a counter and contended that during the trial period (consisting of 302 hearings) the
petitioners have not utilised the opportunities and after completion of prosecution side evidence, including 313 questioning, the petitioners have filed
the petition only for defeating the ends of justice and to fill up the lacuna.
On perusal of the averments in the petitions and the prayer in Crl. M.P. Nos. 136 and 137 of 2007, it is clear that the petitioners are not sure
as to what they want. In the petitions, the petitioners have not even stated as to why the Manager of the Lodge has to be examined, what is the
purpose for which he should be examined or in what way it will help them to disprove the case of the prosecution. Similarly, the petitioners have
not assigned any reason as to how the documents sought to be marked through the Manager of the Lodge will in any way lend support to their
defence. It is not as though the petitioners have not been given any opportunity to put forth their defence. Earlier, the petitioners have filed Crl.
M.P. No. 7 of 2005 to recall some witnesses and the same was allowed. Therefore, the present petitions filed by the petitioners can only be
construed as an attempt to delay the disposal of the sessions case. Even otherwise, according to the learned Government Advocate, after allowing
the Petition filed by the Petitioners in Crl. M.P. No. 7 of 2005, the petitioners have not utilised the opportunity to cross-examine the prosecution
witnesses. Thus, the present petitions filed by the petitioners is only an after-thought or to fill up the lacuna in their defence. Moreover, the
questioning u/s 313 of Cr.P.C. was over and only thereafter, the petitioners have filed the Petitions in Crl. M.P. Nos. 136 and 137 of 2007.
Therefore, the Court below is justified in dismissing the petitions filed by the petitioners on the ground of delay.
The learned Government Advocate (Crl. side) appearing for the respondent also raised a preliminary objection as regards the maintainability of
this Revision Petition by relying upon the decision of the Honourable Supreme Court in Sethuraman v. Rajamanickam (supra) wherein it was held
in para No. 5 as follows:
Secondly, what was not realised was that the orders passed by the trial Court refusing to call the documents and rejecting the application u/s
311 Cr.P.C. were interlocutory orders and as such, the revision against those orders was clearly barred u/s 397(2) Cr.P.C. The trial Court, in its
common order, had clearly mentioned that the cheque was admittedly signed by the respondent-accused and the only defence that was raised, was
that his signed cheques were lost and that the appellant complainant had falsely used one such cheque. The trial Court also recorded a finding that
the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders i.e., one on the
application u/s 91 Cr.P.C. for production of documents and other on the application u/s 311 Cr.P.C for recalling the witnesses, were the orders of
interlocutory nature, in which case, u/s 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have
interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside.
The appeals are allowed.
From a reading of the above decision of the Honourable Supreme Court, it is clear that the orders passed by the Court below are only an
interlocutory order and the Court below has not finally decided the merits or otherwise of the Sessions Case. Therefore, in view of the decision of
the Honourable Supreme Court, the Criminal Revision cases are not maintainable and they are liable to be dismissed.
The learned counsel for the petitioners relied on the decision of the Honourable Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim &
Apparels Limited (supra) to contend that the High Court, while entertaining Criminal Revision Petitions, need not decide on the question of
maintainability as to whether the order passed is an interlocutory order or a final order without adverting to the merits of the case. In para-8 to 11
of the said decision, it was held as follows:
The interdict contained in Section 297(2) of the Code of Criminal Procedure (for short ""the code"") is 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. The safe test laid down by this Court through a series of decisions is this: if the
contention of the petitioner, who moves the superior Court in revision, as against the order under challenge is upheld, would the criminal
proceedings as a whole culminate? If they would, then the order is not interlocutory in spite of the fact of the fact that it was passed during any
interlocutory stage.
A three-Judge Bench of this Court in Madhu Limaye v. State of Maharashtra laid down the following test:
An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an
interlocutory order within the meaning of Section 397(2)
This was upheld by the four-Judge Bench of this Court in V. C. Shukla v. State through CBI.
The above position was reiterated in Rajendra Kumar Sitaram Pande v. Uttam. Again in K.K. Patel v. State of Gujarat, this Court stated thus:
It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not
whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra, V.C.
Shukla v. State through CBI (supra) and Rajendra Kumar Sitaram Pande v. Uttam (supra)). The feasible test is whether by upholding the
objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely
interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the
Court, the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.
It is evident from the above decision of the Honourable Supreme Court that whether an order is interlocutory or not cannot be decided only by
merely looking at the order and the safe test is to analyse that if the contention of the petitioner is upheld, would the criminal proceedings as a
whole culminate? If they would, then the order is not interlocutory inspite of the fact that it was passed during any interlocutory stage. Therefore,
this decision of the Honourable Supreme Court do not lend support to the argument of the counsel for the petitioners. Further, in this case, the
Sessions Case is still pending and by rejection of the Petitions to recall the prosecution witnesses or to mark certain documents, the Court below
has not decided the guilt of the accused or otherwise. The Court below is yet to arrive at a final conclusion as to whether the guilt of the accused
has been established by the prosecution or not. Therefore, the present Criminal Revision Cases are not maintainable both on law and on merits
inasmuch as the order passed by the Court below is only an interlocutory order and consequently, the Criminal Revision Cases are liable to be
dismissed. In the result, both the Criminal Revision Cases are dismissed. Consequently, connected miscellaneous petition is closed.