Andhra Pradesh High Court - Amravati

C.M. Ramachandra Reddy vs The State Of Andhra Pradesh, on 24 February, 2021

Bench: Lalitha Kanneganti

      THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

            CRIMINAL REVISION CASE No.56 of 2021

ORDER:-

      This Criminal Revision Case is filed under Sections 397 and

401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is

filed assailing the order dated 22.10.2020 passed in Crl.M.P.No.484

of 2020 in C.C.No.1504 of 2019 passed by the learned II Additional

Judicial Magistrate of First Class, Kadapa wherein the petition filed

by respondent No.2/complainant under Section 65(c) of the Indian

Evidence Act, 1872 (for short 'Evidence Act') to file photocopy of

Memorandum of Understanding (MOU) was allowed.

2. The petitioner before this Court is accused in C.C.No.1504 of

2019. For the sake of convenience the parties shall be referred to as

the complainant and accused.

3. The case of the accused in brief is:

The complainant along with the complaint has annexed a list of

documents and he filed all the original documents except MOU which

was entered between the complainant-company and accused by

virtue of which the accused has issued subject cheque. The original

copy of MOU was retained with the accused for furnishing the same

before the Directorate of Mining and Geology. It is retained for the

purpose of release of material which is in the custody of the

concerned department for issuing permits. This fact was also

mentioned in the complaint. It is stated in the petition that as there

is no legal impediment for any secondary evidence being adduced in

respect of the said MOU and as the same will not cause any prejudice

to the accused, the application may be allowed.

4. The accused filed counter wherein he raised a preliminary

objection for receiving xerox copy of said MOU for marking it as

exhibit as it is not maintainable under the provisions of Section 65(c)

of the Evidence Act. Their case is that he has nothing to do with the

alleged MOU as claimed to be in existence between the complainant

and the same is not in the custody of the accused. The accused

denied the allegation that in pursuance of said MOU he had issued

subject cheque. When there is no conclusion of MOU between them

the question of its custody with him does not arise. The counsel for

the complainant sent a notice under Section 66 of the Evidence Act

requesting the accused to produce the original of the MOU for which

reply was sent disputing the same. Hence, opposed the petition on

the admissibility of marking the xerox copy of MOU in evidence.

5. The Court below having referred to the relevant Sections of the

Indian Evidence Act, after taking into consideration the contentions

raised by both sides and basing on the law enunciated by the Hon'ble

Apex Court has allowed the petition. Aggrieved by the same the

accused is before this Court by way of this revision.

6. Heard Ms. Uma Devi, learned counsel for the petitioner and Sri

vivek Chandra Sekhar, learned counsel for respondent No.2. Both the

counsel have advanced their arguments on the merits of the matter

at length.

7. The core issue that falls for consideration is about the

maintainability of revision against interlocutory application.

8. The order impugned is an interlocutory order whereby the

petition filed by respondent No.2 under Section 65(c) of the Indian

Evidence Act, 1872 was allowed. At this juncture it is appropriate to

have a look at Sections 397(1) and 397(2) of Cr.P.C.:

"Section 397. Calling for records to exercise powers of revision. - (1) The High court or any Sessions judge may call for and examine the record of any proceeding before any inferior

Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order to suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) ....."

9. It is clear that as per Section 397(1) Cr.P.C. the revisional

powers cannot be exercised in relation to any interlocutory order in

any appeal, enquiry, trial or other proceedings. In Girish Kumar

Suneja v. C.B.I.1, the Hon'ble Apex Court had considered what is an

intermediate order and what is an order that is of matter of moment

and observed as under:

27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition--such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived

(2017) 14 SCC 809

of exercising its extraordinary discretionary power available under Section 397 CrPC.

10. In K.K.Patel v. State of Gujarat2 wherein a revision petition

was filed challenging the order of taking cognizance and issuance of

process, it was held:

"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. 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".

11. In Goli Satyanarayana Reddy v. G.Mahesh3 while referring to

the above judgments, this Court held that in different cases different

expressions are used for the same category of orders. Sometimes it is

called an intermediate order, sometimes a quasi-final order and

sometimes it is called an order that is a matter of moment and held

that an order passed under Section 45 of the Evidence Act, is purely

an interlocutory order and revision against the said order is not

maintainable under Section 397(1) Cr.P.C.

12. Applying the said analogy to the facts of the case and in view of

the law laid down by the Hon'ble Apex Court as well as this Court in

Gogli Satyanarayna Reddy's case (referred supra), there cannot be

any dispute that the order under revision is an interlocutory order