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2018 DIGILAW 1425 (ALL)

Mohd Mubin Alias Raja v. State of U. P.

2018-06-06

YASHWANT VARMA

body2018
JUDGMENT & ORDER : YASHWANT VARMA, J. 1. Heard learned counsel for the applicant and the learned AGA. 2. This petitions calls in question an order dated 15 May 2018 pursuant to which Application No. 29 KHA moved by the applicant who is an accused in Complaint Case No. 6021 of 2015 under Section 406, 323 IPC has come to be rejected. The application itself was for the Court undertaking an exercise of verifying the signatures appearing on a document which is relied upon by the complainant. 3. The submission of the learned counsel for the applicant is that since permission was accorded to the complainant to bring this document/instrument on record of the proceedings, there was no occasion for the Court to reject the application which went to the root of the execution of the instrument itself. It is on this basis that the instant petition is pressed. 4. The Court finds no substance in the submission advanced since the document/instrument which has been brought on the record of the trial is not one which is relied upon by the applicant but and to the contrary by the complainant. The onus, therefore, to establish the execution of the instrument prima facie lies upon the complainant himself. 5. The Court finds no justifiable cause to entertain or evaluate the challenge at this stage for a more fundamental reason. There are two basic postulates of the 482 Cr.P.C jurisdiction which must necessarily be borne in mind while deciding applications like the present which question interlocutory orders passed during the course of trial. 6. Firstly, the impugned order cannot be recognised as falling in the category of orders which if set aside, would ultimately lead to a closure or disposal of the proceedings. In this sense it has no attributes of "finality" or "foreclosure" attached to it. It cannot possibly be assailed in revision on this score. Therefore, the Court must be cautious and circumspect before proceeding further in order to ensure that the jurisdiction under section 482 Cr.P.C is not being abused to circumvent the bar placed by section 397 (2) Cr.P.C. 7. It cannot possibly be assailed in revision on this score. Therefore, the Court must be cautious and circumspect before proceeding further in order to ensure that the jurisdiction under section 482 Cr.P.C is not being abused to circumvent the bar placed by section 397 (2) Cr.P.C. 7. The second but no less significant caveat flows from the very nature and character of the jurisdiction encapsulated in section 482 Cr.P.C. The inherent power of the Court is liable to be exercised only in the rarest of rare cases and where the Court finds that the order:- A. Causes irreparable prejudice B. Its continuance would result in the perpetuation of manifest injustice or C. Amounts to an abuse of the process. 8. The Court also finds that the order impugned, clearly falls within specie of orders which have been described by the Supreme Court as 'non-substantive' in character. The above issues have been eloquently enunciated by the Supreme Court in Girish Kumar Suneja Vs. C.B.I,2017 SCC Online 766 Criminal Appeal No. 1137 of 2017 decided on 13 July 2017: where the following observations were made: - "21. The concept of an intermediate order was further elucidated in Madhu Limayev. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 ] by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind--an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. 22. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. 22. The view expressed in Amar Nath [Amar Nath v. State of Haryana, (1977) 4 SCC 137 ] and Madhu Limaye [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 ] was followed in K.K. Patel v. State of Gujarat [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 ] wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K. Patel case [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 ], SCC p. 201, para 11) "11. ... 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 [Amar Nath v. State of Haryana, (1977) 4 SCC 137 ] , Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 ], V.C. Shukla v. State [V.C. Shukla v. State, (1980) Supp1 SCC 92] and Rajendra Kumar Sitaram Pande v. Uttam [Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134 ]. 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." 24. The second reason why Amar Nath [Amar Nath v. State of Haryana, (1977) 4 SCC 137 ] is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be done indirectly. Therefore, when Section 397(2) Cr.P.C. prohibits interference in respect of interlocutory orders, Section 482 Cr.P.C. cannot be availed of to achieve the same objective. Therefore, when Section 397(2) Cr.P.C. prohibits interference in respect of interlocutory orders, Section 482 Cr.P.C. cannot be availed of to achieve the same objective. In other words, since Section 397(2) Cr.P.C. prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482 Cr.P.C. to set aside an interlocutory order. This is what this Court held: (SCC p. 140, para 3) "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." 33. Proceeding on this basis, what is the nature of cases that we are presently dealing with While in some appeals the order summoning the appellant or the order for framing charges is in question (we have already dealt with these issues), in other appeals the grievance is in respect of: admission and denial of documents under Section 294 Cr.P.C. [SLP (Crl.) No. 6912 of 2016 -- Ashok Daga v. CBI and SLP (Crl.) No. 7477 of 2016 -- Mukesh Gupta v. CBI]; alteration of charge under Section 216 Cr.P.C. [SLP (Crl.) No. 8391 of 2016 -- Mukesh Gupta v. CBI]; joint or single trial under Sections 219 and 220 Cr.P.C. [SLP (Crl.) No. 8703 of 2016 -- Manoj K. Jayaswal v. CBI]; summoning additional accused persons [SLP (Crl.) No. 1441 of 2017 -- Devendra Darda v. CBI]. A challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the court. 34. How ridiculous a challenge can become was illustrated in Centre for Public Interest Litigation v. Union of India [Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 117 ] wherein this Court cautioned against challenging the appointment of the Special Public Prosecutor or his assistant advocates! Quite obviously, these are tactics employed by the accused to delay the trial while the endeavour of Parliament is to expedite all trials to prevent harassment to the accused. This has led to odd situations in which some accused are desirous of continuing their harassment by delaying the trial and then complaining about it. In any event, such orders cannot fall in the "rarest of rare" category and can always be made a ground for appeal, if necessary, after the final order is made since in respect of such orders even a petition under Section 482 Cr.P.C. would not be maintainable." 9. On an overall consideration of the aforesaid facts, this Court finds no ground to interfere with the order impugned. 10. The petition is dismissed.