ABDULALI YUSUFALI v. ABDULHUSAN TAIYABALI DHALRIA — 1978 DIGILAW 47 (GUJ)

S. H. SHETH, J. ( 1 ) THE petitioner is the original complainant who filed Criminal Case No. 246 of 1975 in the Court of Judicial Magistrate First Class Dhoraji against the accused. He alleged that the accused had committed offences punishable under sec. 341 read with sec. 114 and sec. 500 read with sec. 114 of the Indian Penal Code. Respondents nos. 1 to 5 are the accused. Original accused no. 1 could not be served with the process of the Court inspite of several attempts which were made to serve him. He was therefore dropped from the case. On 24th February 1976 the complainant made an application to the learned Magistrate in which he prayed that amongst others Vada Mullaji of Dawoodi Vohra community should be summoned to give evidence. No objection was raised to that application at that stage. The learned Magistrate granted that application be his order dated 24th February 1976 On 8th March 1977 the accused made an application to the learned Magistrate in which they stated that before granting the application to summon amongst others Vada Mullaji to give evidence in the case they should be heard That application was rejected. However after hearing the parties the learned Magistrate made an order to record the evidence of Vada Mullaji on commission. On 29th April 1977 the complainant made an application to issue commission. It was objected to on behalf of the accused. By that application the complainant prayed that the learned Chief Metropolitan Magistrate Bombay should be requested to appoint some appropriate person as Commissioner to record the evidence of Vada Mullaji. That application was granted. A letter of request was sent to the learned Chief Metropolitan Magistrate Bombay for the purpose. The learned Magistrate further ordered that so far as the cost of examining Vada Mullaji at Bombay was concerned the question would be decided later on. On 23rd May 1977 the accused made an application calling upon the complainant to furnish to them interrogatories on the basis of which Vada Mullaji would be examined. In reply to that application the learned Magistrate heard the parties in the matter. The learned Magistrate instead of asking the complainant to furnish the interrogatories canceled all the earlier orders in the matter of examining Vada Mullaji. In reply to that application the learned Magistrate heard the parties in the matter. The learned Magistrate instead of asking the complainant to furnish the interrogatories canceled all the earlier orders in the matter of examining Vada Mullaji. He observed in his order that the evidence of Vada Mullaji was not necessary to be recorded for the purpose of the present case. ( 2 ) IT is that order which is challenged by the complainant in this petition. ( 3 ) MR. Anand who appears on behalf of the petitioner-complainant has raised before me the following three contentions: (1) The learned Magistrate has no jurisdiction to make the impugned order; (2) He was in error in granting relief in excess of the relief prayed (3) He was in error in taking into account the factors which were not averred in the application or argued and urged. He was also in error in ignoring certain material facts. ( 4 ) MR. G. A. Thakker who appears on behalf of the original accused has raised a preliminary objection to the maintainability of this petition. According to him the terms of Article 226 of the Constitution are not satisfied by the averments made in this petition and that therefore the petition is liable to be dismissed in limine. ( 5 ) SO far as the first contention raised by Mr. Anand is concerned it is necessary to note the jurisdiction of the learned Magistrate under the Code of Criminal Procedure 1973 Sec. 362 upon which reliance has been placed reads as follows: Save as otherwise provided by this Code or by any other law for the time being in force no Court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. Sec. 362 indisputably bars the jurisdiction of a Criminal Court to alter or review its judgment or final order disposing of a case except for a very limited purpose specified in the section. ( 6 ) IT is necessary to note in this context sec. 369 of the Criminal Procedure Code 1898 (now repealed ). Sec. 362 indisputably bars the jurisdiction of a Criminal Court to alter or review its judgment or final order disposing of a case except for a very limited purpose specified in the section. ( 6 ) IT is necessary to note in this context sec. 369 of the Criminal Procedure Code 1898 (now repealed ). It read as follows:save as otherwise provided by this Code or by any other law for the time being in force or in the case of a Sigh Court by the Letters Patent or other instrument constituting such High Court no Court when it has signed its judgment shall alter or review the same except to correct a clerical error. There is some difference in the language employed by these two sections. The material difference in the context of the situation which has arisen in this case is that whereas sec. 369 of the repealed Code provided that a criminal Court shall not alter or review its judgment after it has signed it sec. 362 of the new Code provides that a criminal Court shall not alter or review its judgment or final order disposing of a case. Therefore the material alteration which the Parliament has introduced in sec. 362 of the new Code consists on the addition of the expression final order disposing of a case. Therefore it is clear that there is an embargo placed upon the jurisdiction of a criminal Court to review its judgment or final order disposing of a case after it has signed it. On the other hand sec. 482 of the new Code which is pari materia with sec. 561-A of the old Code confers only upon the High Court the inherent power to make any order which is necessary to be made in order to give effect to the provisions of the Code to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It provides as follows:nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. MR. It provides as follows:nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. MR. Anand has tried to present a straight-jacket formula by arguing that whereas on one hand the magisterial Court has no inherent jurisdic- tion to do something which it thinks necessary to do there is complete embargo upon this power placed by sec. 362 in the matter of reviewing its judgment or final order disposing of a case. According to him there is nothing in the Code which permits a magisterial Court to do what the learned Magistrate did in the instant case. ( 7 ) THE reasoning which has prevailed with the learned Magistrate is that since the embargo created by sec. 362 operates only against the judgment or final order disposing of a case he has jurisdiction to review or recall his interlocutory orders. It has been argued by Mr. Anand that the expression final order disposing of a case does not necessarily mean a final order disposing of the entire case. According to him the expression a case includes a part of the case as well. So far as the last argument is concerned there is some substance in what he has canvassed. If the Parliament had intended by using the expression final order disposing of a case final order which brings to an end the entire case it would have probably used the expression the case instead of a case. Therefore looking at the language used by the Parliament in sec. 362 of the Code it appears to me that the Parliament has intended to include within the meaning of sec. 362 a part of the case which has been disposed of by a final order. It cannot be gainsaid that a final order and an interlocutory order are two different things. A glance at sub-sec. (2) of sec. 397 makes clear the distinction which the Parliament has made between a final order and an interlocutory order. Sub-sec. (2) of sec. 397 reads as under: The powers of revision conferred by sub-sec. It cannot be gainsaid that a final order and an interlocutory order are two different things. A glance at sub-sec. (2) of sec. 397 makes clear the distinction which the Parliament has made between a final order and an interlocutory order. Sub-sec. (2) of sec. 397 reads as under: The powers of revision conferred by sub-sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal inquiry trial or other pro- ceedings. ( 8 ) WHEN sub-sec. (2) of sec. 397 is placed in juxta-position with sec. 362 it becomes very clear that the Parliament has made a clear distinction between a final order and an interlocutory order. The embargo placed by sec. 362 does not therefore in my opinion operate against an interlocutory order. The question which therefore I am required to consider is whether the order which the learned Magistrate reviewed was an interlocutory order a final order disposing of a case meaning thereby a part of the case as well. For the purpose of elucidation it may be noted that the order which the learned Magistrate reviewed was an order by which summons was ordered to be issued to Vada Mullaji in the first instance to appear as a witness in the case before the trial Court. It was later on modified so that the evidence of Vada Mullaji was ordered to be recorded on commission. It was this order which the learned Magistrate reviewed and set aside. If it was a final order disposing of a case as argued by Mr. Anand the embargo placed by sec. 362 would rob him of his jurisdiction to do what he did. If it was not a final order but an interlocutory order under what provision of law did the learned Magistrate review it particularly when no inherent jurisdiction is conferred upon him to do what he did ? Whether the impugned order was a final order or an interlocutory order is not a matter which is capable of being elaborately argued after the decision of the Supreme Court in Amar Nath and Others v. State of Haryana and Others A. 1. R. 1977 S. C. 2185. Indeed in that case the Supreme Court was considering the scope of sec. 397 (2) in which the expression interlocutory order has been used. I have reproduced that section in an earlier part of this judgment. R. 1977 S. C. 2185. Indeed in that case the Supreme Court was considering the scope of sec. 397 (2) in which the expression interlocutory order has been used. I have reproduced that section in an earlier part of this judgment. Explaining the connotation of the expression the Supreme Court has observed that it denotes an order of purely interim and temporary nature which does not decide or touch upon the rights or liabilities of the parties. As regards sub-sec. (2) of sec. 397 the Supreme Court has further observed that it has not been used in any artistic sense but has been used in a restricted sense. It has further observed that any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Thereafter illustrating the orders which can be called interlocutory orders the Supreme Court has observed that an order summoning a witness or an order adjourning a case calling for the reports or taking steps in the proceedings are all interlocutory orders against which no revision petition lies under sub-sec. (2) of sec. 397. There are two principles which clearly emerge from this decision of Supreme Court. The first principle which must be borne in mind is that any order which substantially Aspects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order. Therefore in my opinion an interlocutory order is one which is made in furtherance of the proceedings but which does not substantially affect the rights of the parties. Second principle which emerges is that within the meaning of sub-sec (2) of sec. 397 an order summoning the witness is an inter. Accouter order. ( 9 ) IN Madhu Limaye v. State of Mahasashtra A. I. R. 1978 S. C. 47 adverting to the expression interlocutory order as used in sec. 397 (2) of the new Criminal Procedure Code it has been observed by the Supreme Court that ordinarily and generally the expression interlocutory order has been understood and taken to mean a converse of the term final order. However universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. However universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. It has been further observed by the Supreme Court that 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 sec. 397 (2 ). In that case the jurisdiction of the Court to proceed with a trial was challenged. That plea was turned down by the trial Court. The Supreme Court held that the order by which the plea which was raised against the jurisdiction of the Court and which was turned down was surely not an interlocutory order so as to attract the bar of sub-sec. (2) of sec. 397. ( 10 ) MR. Anand has also placed reliance upon the decision of Allahabad High Court in Ram Swaroop Himmat Singh v. State of U. P. and Another 1966 Criminal Law Journal 833. The learned single Judge of that High Court has observed that where a Magistrate has summoned some witn- esses after ascertaining from the complainant to give evidence in support of the complaint he must examine those witnesses who are present and available in court before he can discharge the accused. He has further observed that once the Magistrate has thought it fit to exercise his discretion in summoning certain witnesses for evidence and if those witnesses are present in the Court and available for evidence it will be incongruous to hold that though at one particular stage of the proceedings the Magistrate thought their evidence to be necessary for finding out the truth he was free to con- sider that evidence wholly unnecessary at another stage of the proceeding for the same purpose. It has also been argued by Mr. Anand that while exer- cising his power of review if he has any the learned Magistrate cannot sit in appeal on his own order or on the order of his predecessor- in-office. That question strictly does not arise in the instant case and it is not necessary for me to express my opinion thereon. Anand that while exer- cising his power of review if he has any the learned Magistrate cannot sit in appeal on his own order or on the order of his predecessor- in-office. That question strictly does not arise in the instant case and it is not necessary for me to express my opinion thereon. Bearing in mind the principles which have been laid down in the decisions to which I have referred I have to find out whether the order which the learned Magistrate has set aside was an interlocutory order or a final order disposing of a case. In my opinion it was not a final order disposing of a case because no substantial rights of the complainant were thereby injured. It is always open to the complainant or to the accused to apply to a criminal Court to summon certain witnesses in aid of their respective cases but it cannot be gainsaid that the learned Magistrate is not bound to summon all in respect of whom the request is made. He is entitled to find out whether the evidence of witnesses who are sought to be summoned by a party is relevant to the case. If he finds that a false attempt is made to summon persons whose evidence is going to throw no light upon the prosecution or defence case he is entitled to refuse to summon them. Therefore since neither the complainant nor the accused has an irrevocable right to summon witnesses of all sorts it is difficult to imagine that refusal to summon a witness will under all circumstances cause substantial injury to the rights of a party seeking summons. Since in my opinion the order which the learned Magistrate recalled and set aside was not a final order disposing of a case the embargo placed upon his power under sec. 362 of the Criminal Procedure Code did not operate against him. ( 11 ) THE next question is whether there is any other express provision in the Code which enables him to do what he did. I have already observed that he cannot bring into play sec. 482 of the new Code which confers inherent power only upon the High Court. ( 11 ) THE next question is whether there is any other express provision in the Code which enables him to do what he did. I have already observed that he cannot bring into play sec. 482 of the new Code which confers inherent power only upon the High Court. Though a magisterial Court does not have inherent power yet it is difficult for me to imagine that the Parliament by denying to the magisterial Court the inherent power and also by denying to it the power to alter or review its judgment or final order disposing of a case thought of denying to it the power of taking step of a purely interlocutory character. ( 12 ) IN Lalit Mohan Bhattacharjee v. Noni Lal Sarkar and Others A. I. R. 1923 Calcutta 662 a similar question arose in the context of sec. 369 of the old Code. I have quoted that section in the foregoing parts of this judgment. That section operated only against the review of judgments. Sec. 362 of the new Code operates against the review of the judgment and final order disposing of a case. However addition of the expression final order disposing of a case does not make any difference in applying the principle laid down by Calcutta High Court in Lalit Mohan Bhattacharjees case (Supra ). It has been observed by the Division Bench of that Court in that decision that there is nothing in the Code which forbids the Magistrate to reconsider his order summoning the accused on sufficient grounds. ( 13 ) THE principle laid down in that decision has been applied by the Division Bench of Jammu and Kashmir High Court in Mirza Mohd. Afzal Beg and Others v. State of Jammu and Kashmir and Others A I. R. 1960 Jammu and Kashmir 1. It has been observed by the Division Bench of that Court that it is not valid to contend that the Magistrate is absolutely bound by an order of an interlocutory character and has no right to pass a different order unless his earlier order has been set aside by a superior Court in appropriate proceedings. It has been further observed in that decision that the principle applicable to a judgment does not apply to an interlocutory order and that tale Magistrate is entitled to pass a different order at a later stage. It has been further observed in that decision that the principle applicable to a judgment does not apply to an interlocutory order and that tale Magistrate is entitled to pass a different order at a later stage. ( 14 ) IN Sahdeo Tanti v. Bipti Pasin and Another A. I. R. 1969 Patna 415 the learned single Judge of Patna High Court has observed that the order rejecting prayer of prosecution for examining the witness is in the nature of an interlocutory order and is not the judgment against review of which embargo created by sec. 369 of the Code operates. It is therefore clear that though on one hand the Parliament has denied to sub- ordinate Courts the inherent power it has expressly barred their jurisdi- ction to review the judgment or final order disposing of a case. If the Parliament had intended to create an embargo against reviewing or recalling all sorts of orders including interlocutory orders nothing would have easier for them than to say so. Instead of the expression final order they could have used the expression order or they could have used the expression final and interlocutory orders. It is clear therefore that the law which the Parliament has enacted is not so rigid as Mr. Anand has tried to make out. It contains an element of flexibility which is necessary for effectively deciding all disputes and controversies of a criminal nature. ( 15 ) ON first principles also it is difficult for me to imagine that the Parliament could have ever thought of making the Code so rigid because if a Magistrate after having made a formal order cannot on new facts being brought to his notice alter modify or recall it it would lead to a degree of rigidity which will hinder the progress of criminal prosecutors than help it. To illustrate if a Magistrate makes an order granting bail or refusing to grant a bail can he not make a fresh or contrary order on new facts being brought to his light ? Similarly if a Magistrate has made an order summoning a witness can he not on being shown that his evidence is absolutely irrelevant set aside or modify that order ? Is he bound under the Code of Criminal Procedure to examine all relevant and irrelevant witnesses whom the prosecution and accused produce ? Similarly if a Magistrate has made an order summoning a witness can he not on being shown that his evidence is absolutely irrelevant set aside or modify that order ? Is he bound under the Code of Criminal Procedure to examine all relevant and irrelevant witnesses whom the prosecution and accused produce ? Similarly if he has refused to adjourn a case can he not on further material placed before him come to the conclusion that though he had refused to adjourn the case earlier adjournment of the case is justified by new facts brought to his notice ? It is difficult to imagine similar and identical sets of facts in every case. Human society is dynamic and litigations and prosecutions present as many varied pictures as the human society can. Therefore bearing in mind the fact that the human society is dynamic and the problems which it presents are as varied and unimaginable as they can be it is difficult to conceive that the Parliament has enacted the Code which is so rigid that the fluid dynamism of society must be necessarily fitted into it. I am therefore not impressed by the argument that sec. 362 is so rigid as Mr. Anand has tried to make out. In my opinion the learned Magistrate had jurisdiction to make the impugned order. Therefore the impugned order suffers from no want of jurisdiction. ( 16 ) THE first contention raised by Mr. Anand is therefore rejected. ( 17 ) SO far as his second and third contentions are concerned I do not propose to examine them. The reasons for doing so are as follows: The evidence of a large number of witnesses produced by the complainant has been recorded by the learned Magistrate. It appears that the case was posted for arguments. It further appears that the case is likely to see the judgment immediately. To examine the other two contentions which Mr. Anand has raised is to enter into the examination of their evidence and to express opinion which I do not think proper to do. It would be open to the complainant in appeal to agitate these two contentions and to persuade the appellate Court that though the learned Magistrate had jurisdiction to do what he did he ought not to have made the impugned order in the facts and circumstances of the case. It would be open to the complainant in appeal to agitate these two contentions and to persuade the appellate Court that though the learned Magistrate had jurisdiction to do what he did he ought not to have made the impugned order in the facts and circumstances of the case. The appellate Court would be in a far better position to appreciate these two contentions and to come to a more satisfactory conclusion after having examined all the evidence. Though strictly speaking I should have first examined the preliminary objection raised by Mr. Thakker I have not done so because I was inclined to interpret sec. 362 than to throw away the petition on a technical ground leaving the entire controversy open. Since I have expressed my opinion against the complainant on the first contention and since I am not examining the other two contentions raised by him it is not necessary for me to express any opinion on the question of maintainability of the petition raised by Mr. Thakker. ( 18 ) IN the result the petition fails and is dismissed. Rule is discharged. ( 19 ) ON the oral request made by Mr. Anand the stay of proceedings before the learned Magistrate ordered by this Court earlier is continued for a period of ten days more. .