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2019 DIGILAW 323 (AP)

M. Koteswara Reddy v. State of Andhra Pradesh

2019-11-14

CHEEKATI MANAVENDRANATH ROY

body2019
ORDER : Cheekati Manavendranath Roy, J. 1. This criminal revision case arises out of the order dated 7.12.2017 passed in Crl. M.P. No. 71 of 2017 in Crl. A. No. 2 of 2017 on the file of the II Additional Sessions Judge, Parvatipuram, whereby the petition filed under Section 391 Cr.P.C., to recall PW 1 for cross-examination was dismissed. 2. Briefly stated the facts emanating from the record are as follows: 3. The petitioner is sole accused in CC No. 278 of 2008 on the file of the Judicial Magistrate of First Class, Salur. He was prosecuted for the offence under Section 138 of Negotiable Instruments Act and he was convicted for the said offence. Aggrieved by the said judgment of conviction and sentence imposed against him, the petitioner preferred Crl. A. No. 2 of 2017 on the file of the II Additional Sessions Judge, Parvatipuram. During the pendency of the said criminal appeal, the petitioner has filed a petition under Section 391 Cr.P.C., to recall PW 1 for further cross-examination. 4. After hearing both parties, the learned II Additional Sessions Judge by the impugned order dismissed the said petition. 5. Aggrieved thereby the petitioners preferred this criminal revision case questioning the legality and validity of the impugned order. 6. Heard the learned Counsel for the petitioner and learned Additional Public Prosecutor. 7. Since this is a revision arising out of the order passed in a petition filed under Section 391 Cr.P.C., this Court is of the considered view that this revision can be disposed of on the ground of its maintainability, without going into the merits of the case. 8. This revision is preferred under Section 397(1) Cr.P.C., questioning the validity of the impugned order passed under Section 391 Cr.P.C., dismissing the application to recall PW 1. Therefore, the impugned order is purely an interlocutory order. It does not decide anything finally and terminate the proceedings of the main case once for all. 9. Now it is well settled law that an order summoning a witness under Section 391 Cr.P.C., summoning of documents under Section 91 Cr.P.C., etc., are all pure and simple interlocutory orders. On the samel analogy the petitioner filed under Section 391 Cr.P.C., in the appellate Court also to summon a witness, even for further cross-examination, is also a pure and simple interlocutory order. On the samel analogy the petitioner filed under Section 391 Cr.P.C., in the appellate Court also to summon a witness, even for further cross-examination, is also a pure and simple interlocutory order. Section 397(2) Cr.P.C., imposes a clear bar to exercise power of revision under Section 397(1) Cr.P.C., in respect of interlocutory orders. 10. The Apex Court in the case of Sethuram v. Rajamanickam, 2009 (1) ALD (Crl.) 871 (SC) : (2009) 5 SCC 153 , at Para 5 of the judgment, held as follows: "....... The order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. It is further held as follows: .......This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C., for production of documents and other on the application under Section 311 Cr.P.C., for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable." 11. In view of the dictum laid down in the aforesaid judgment of the Apex Court that revision filed under Section 397(1) Cr.P.C., against an interlocutory order is not maintainable in view of the bar engrafted under Section 397(2) Cr.P.C., this revision, I which is preferred against an interlocutory order passed under Section 391 Cr.P.C., to recall PW 1 for cross-examination, is also not maintainable. 12. As this Court is disposing of this revision only after considering its maintainability, without touching the merits of the case, nothing is expressed in relation to the merits of the case. This revision is being disposed of only on the ground of its maintainability. 13. Accordingly, the criminal revision case is dismissed as not maintainable.