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Judgment
S. Tamilvanan, J.—This Criminal Revision is directed against the Interlocutory Order, dated 12.12.2002 made in C.M.P.No. 778 of 2002
in STC No. 68/90 on the file of the Special Court under the Essential Commodities Act, Coimbatore.
The revision petitioner is the accused No. 1 in the case pending before the court below. The first respondent herein filed the criminal complaint
u/s 200(a) of Criminal Procedure Code on the ground that the accused had contravened and violated Section 19(1) of Fertiliser Control Order
1985 and that the same is punishable u/s 7(i) and (ii) of Essential Commodities Act.
The first respondent / complainant had filed the Interlocutory Application in C.M.P.No. 778 of 2002 u/s 311 of the Code of Criminal
Procedure to recall P.W.1 for the purpose of further examination, for which, it is stated by the first respondent, before the trial court, that due to
inadvertence, while P.W.1, Agricultural Officer Thiru. Iqbal was examined, certain pages of the stock register were left out from marking, though
they are vital documents for the purpose of establishing the prosecution case and on that ground, the prosecution pleaded for recalling P.W.1, so
as to examine the witness further. The revision petitioner / A1 had raised his objection, by way of filing counter. The trial court considering the
arguments advanced by both sides, has allowed the petition to recall P.W.1. Against which, this Criminal Revision Petition has been preferred by
the petitioner / A1.
Learned Counsel appearing for the revision petitioner submits that the petition has been filed before the trial court, u/s 311 of the Code of
Criminal Procedure to fill up the lacuna in the prosecution case. According to the revision petitioner, there is no reason as to why the witness
P.W.1 has to be recalled as the second time, especially when the same witness had been permitted to be re-examined, and some documents were
marked through him. According to the learned Counsel for the revision petitioner, the impugned order passed by the trial court, permitting to recall
P.W.1 for marking document would prejudice the petitioner / A1.
The first contention raised by the learned Government Advocate appearing for the first respondent is that the revision petition itself is not
maintainable, since the revision petitioner cannot challenge the order passed in the Interlocutory Application filed u/s 311 Cr.P.C, in view of
Section 397(2) Cr.P.C. Further, submitted that as per the finding of the court below, by recalling P.W.1 and marking the relevant pages of the
document, which was already produced before the court, the revision petitioner would not be prejudiced. In support of his contention, Mr. Hasan
Mohamed Jinnah, the learned Government Advocate cited the following decisions reported in 1) 1985 (1) Crimes 121, Umed Singh and Ors. v.
Devi Singh and Ors. and 2) Dawarka Dass Vs. State of Himachal Pradesh, .
The learned Government Advocate further submits that the case is of the year 1990 and still pending before the trial court on trivial grounds.
After the closure of the prosecution evidence, the case was posted for questioning the accused u/s 313 Cr.P.C and the questioning was also over.
He further submitted that the criminal revision preferred by the petitioner / A1 is not legally sustainable, in view of Section 397(2) of the Code of
Criminal Procedure.
In the decision, Shailendra Kumar v. State of Bihar reported in 2002 SCC (Cri) 230, the Hon''ble Supreme Court has held as follows ""Section
311 empowers the court to summon material witnesses though not summoned as witnesses and to examine or recall and re-examine if their
evidence appears to it to be essential to the just decision of the case. Section 311 reveals that it is of a very wide amplitude and if there is any
negligence, laches or mistakes by not examining material witnesses, the court''s function to render just decision by examining such witnesses at any
stage is not, in any way, impaired.
In order to enlighten the court on the legal aspect, both the learned Counsel have relied on the Full Bench decision of the Hon''ble Supreme
Court rendered in Madhu Limaye Vs. The State of Maharashtra, , wherein it has been ruled by the Hon''ble Apex Court, that the inherent power
u/s 482 Cr.P.C may be invoked for quashing any interlocutory order, even though revision is prohibited u/s 397(2) of the Code of Criminal
Procedure and formulated the following principles in relation to the exercise of the inherent power of the High Court:
That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
That is should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
In the decision Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors. reported in 2001 SCC (Cri) 1254, the Hon''ble Apex
Court has held as follows : ""The interdict contained in Section 397(2) 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 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 that it was passed during any interlocutory stage.
It is not in dispute that the earlier order passed by the Hon''ble Apex Court in Amar Nath v. State of Haryana reported in 1977 SCC (Cri)
585, holding that no power in the High Court to revise interlocutory order and the inherent powers cannot be exercised when there is an express
bar in a provision of the Code, has been modified in Madhu Limaye''s case.
In the light of the aforesaid decision of the Hon''ble Apex Court, it is clear that though there is a bar u/s 397(2) Cr.P.C to maintain a criminal
revision against the interlocutory orders, u/s 482 of the Code of Criminal Procedure, this Court can invoke the inherent powers and quash the
interlocutory orders.
As per Section 482 Cr.P.C, only to prevent abuse of process of any court, which is subordinate to this Court or otherwise to secure the ends
of justice, the inherent power can be invoked, for which the revision petitioner has to establish that the impugned order is an abuse of process of
the court below.
It is not in dispute that P.W.1 was already examined and subsequently, recalled for marking a document. By the impugned order, the learned
Judicial Magistrate has allowed the petition filed by the respondent / complainant to recall the said witness for the purpose of marking a particular
page of the register/ which was left out, while other pages of the register were marked. According to the learned Government Advocate, the
impugned order would not prejudice the revision petitioner.
Learned Government Advocate further contended that allowing the petition filed u/s 311 Cr.P.C to recall P.W.1 for marking document itself
would not be illegal and it cannot be construed as abuse of process of the Court.
Punjab and Haryana High Court, in the decision Surinder Singh v. State reported in 1988 (2) Cri 35, has held that the Magistrate ordering
production of additional witnesses, being an interlocutory order is not open to revision u/s 397(2) Cr.P.C.
Himachal Pradesh High Court, in the decision Dawarka Dass Vs. State of Himachal Pradesh, , has held that the order which is sought to be
challenged being an interlocutory order passed by the Magistrate during the course of the trial, held that the impugned order was not revisable u/s
397(2) of the Code of Criminal Procedure, but in the interest of justice, keeping in view the principles of natural justice, the inherent power u/s 482
can be invoked.
In the decision Sanjay v. State of Haryana reported in 2005 Crl.L.J.287, Punjab and Haryana High Court has held that an order of rejection
of application u/s 311 Cr.P.C is an interlocutory order and hence revision is not maintainable.
From the facts and circumstances of the case, in the light of the decisions of the Hon''ble Apex Court and various High Courts, it is clear that
the trial court exercising its discretion has allowed the petition filed u/s 311 Cr.P.C. The impugned order cannot be said as violative of any
provision of the Code of Criminal Procedure or any other law in force. Therefore, there is no question of preventing any abuse of process by the
court below, by way of invoking the inherent power u/s 482 of Cr.P.C. would arise. Similarly to secure the ends of justice, this Court need not
invoke the inherent power, since marking a particular page of the register, that was already marked would not prejudice the revision petitioner /
accused, and he is also at liberty to raise all his defence which are available under law before the trial court. Therefore, in the light of the decisions
referred above, I am of the considered view that the inherent power u/s 482 of the Code of Criminal procedure cannot be invoked and hence, in
view of Section 397(2) Cr.P.C, the criminal revision petition, challenging the interlocutory order passed by the court below is not legally
sustainable and hence, the criminal revision fails.
In the result, the Criminal Revision is dismissed. Since, the matter is pending for a long time, the trial court is directed to dispose the case as
early as possible, according to law.