Md. Jamal Ahmad S/o Late Gulam Rashool v. State of Jharkhand
2016-12-14
S.N.PATHAK
body2016
DigiLaw.ai
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. This Cr. M.P. has been filed with a prayer to set aside the order dated 11.02.2016, passed by the learned Sessions Judge, Chatra in Cr. Rev. No. 63 of 2015, whereby the learned Court has declined to set aside the order dated 03.09.2015, passed by the learned Chief Judicial Magistrate, Chatra in Complaint Case No. 33 of 2008. The petitioner has also prayed to direct the learned Trial Court to allow the petitioner and other witnesses to be examined in the trial. 3. The facts of the case in brief is that petitioner had filed Complaint Case No. 33 of 2008, which is still pending and after framing of charge, the learned trial Court had ordered to adduce evidences on behalf of the complainant within the four dates fixed by the Court. On the next fixed date i.e. 07.10.2013, the petitioner has presented Jitendra Tiwari, staff of Fire Brigade as his witness but the learned trial Court did not examine the said witness and as result of which, this witness had to return without being examined for three consecutive dates and finally, the witness got examined on 15.01.2015. Thereafter, on 21.04.2015, the matter has been sent to the Mediation Centre for amicable settlement of the disputes between the parties through mediation, where for three consecutive dates i.e. 22.04.2015, 23.04.2015 and 24.04.2015 efforts had been made for settlement but since the opposite parties did not show their willingness for compromise, the matter was remanded back to the trial Court. The petitioner had appeared before the trial Court on every date fixed for his evidence, but due to different reasons, he could not be examined. It is also submitted that in spite of the fact that the petitioner has filed his attendance on several dates fixed, the same has not been mentioned in the order-sheets of the case and finally, the learned trial Court on 20.06.2015 closed the evidence of the complainant and matter was fixed on 27.07.2015 for the statement of opposite parties. However, the petitioner could not peruse the said order sheet and again, he appeared as witness on the said date, whereas, the opposite party has filed a time petition. 4.
However, the petitioner could not peruse the said order sheet and again, he appeared as witness on the said date, whereas, the opposite party has filed a time petition. 4. When the petitioner came to know that the evidence on his behalf has been closed, he filed an application being Complaint Case No. 33 of 2008, before the learned trial Court for examining him as a witness. The learned trial Court vide its order dated 20.06.2015 rejected the application filed by the petitioner. The petitioner then moved the learned Sessions Judge, Chatra vide Cr. Rev. No. 63 of 2015, for setting aside the order of the learned trial Court dated 20.06.2015, which was rejected by the learned Sessions Judge vide its order dated 11.02.2016, merely on technical ground that the instant revision is not maintainable against interlocutory order and even the grounds taken by the petitioner in revision application is not at all discussed in the order-sheet of the learned trial Court. 5. Learned counsel appearing for the petitioner submits that if the petitioner is not permitted to adduce any evidence or to be examined as witness, he will suffer irreparable loss and injury. It is further submitted that the petitioner is ready to abide by all terms and conditions, if imposed by this Hon’ble Court. Learned counsel further argued that the lower court has passed the order mechanically without any basis which requires interference by this Court and as such, fit to be set aside. 6. On the other hand, learned counsel appearing for the State has opposed the prayer and submitted that grounds taken by the petitioner for quashing of the order dated 11.02.2016 passed by the learned Sessions Judge, Chatra are not tenable. It is further submitted that the learned Sessions Judge has rightly dismissed the Revision Application, since against an interlocutory order revision is not maintainable. 7.
It is further submitted that the learned Sessions Judge has rightly dismissed the Revision Application, since against an interlocutory order revision is not maintainable. 7. Upon going through the rival submissions of the parties and considering the several judicial pronouncement, this Court is of the view that the order dated 11.02.2016 warrants no interference on the following grounds:- (i) The revision against an interlocutory order is not maintainable in view of Section 397(2) Cr.P.C. and in view of the decisions rendered by the Hon'ble Supreme Court in cases of Mohit @ Sonu and Another vs. State of Uttar Pradesh and Another, (2013) 7 SCC 789 ; S.K. Bhatt vs. State of U.P. and Others, (2005) 3 SCC 634 and Amar Nath vs. State of Haryana, (1977) 4 SCC 137 . (ii) Answering the question raised on maintainability of the interlocutory application and whether it is barred under Sub-Section 2 of Section 397 Cr. P.C. the Hon'ble Apex Court in para-3 of its judgment passed in the case of Amar Nath vs. State of Haryana (supra), has held as under:- "3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers." 8.
It is well settled that the inherent powers of the court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers." 8. From the facts of the aforesaid case and from the impugned order it transpires that while the case record was fixed for statement U/s. 313 Cr.P.C. and date was fixed on 07.08.2013, an application was filed U/s. 311 Cr.P.C. by the complainant which was allowed by order dated 27.09.2013 and four dates time was give to the complainant for production of evidence. It also appears that after 27.09.2013 total 18 adjournments were given to the complainant to adduce evidence but he failed to do so, hence the evidence of the complainant was closed on 20.06.2015. Therefore, it shows that more than sufficient opportunity was given to the revisionist to adduce evidence in the case of the year 2008 but he failed to produce all evidence. 9. In view of the discussions made in the foregoing paragraphs, it seems that the revisionist had lost interest in the case and there is no infringement of the rights and liabilities of the parties concerned as they themselves have lost interest in the aforesaid case since 18 adjournments were given to the complainant for adducing evidence but he failed to do so and as such, the evidence was rightly closed on 20.06.2015. 10. In view of the aforesaid rules and the settled proposition of law, the impugned order warrants no interference and as such, quashing application is dismissed.