Calcutta High Court (Appellete Side)
Monirul Sekh vs Ab The State Of West Bengal on 17 February, 2023
17.02.2023
CRR 1001 of 2015
Court No.02
Item No.06
Monirul Sekh
Vs.
Ab The State of West Bengal.
This criminal revision has been preferred by the applicant
under Sections 397 and 482 of the Code of Criminal Procedure
against an order dated 17th March 2015 passed by the learned
Additional Chief Judicial Magistrate, Basirhat, in connection with
G.R. Case No. 3637 of 2013 whereby the applications filed under
Sections 91 and 207 of the Code of Criminal Procedure have been
rejected.
No one is present on behalf of either of the parties.
The instant matter relates to administration of criminal justice.
As held by the Hon'ble Supreme Court in case of Madan Lal Kapoor
vs. Rajiv Thapar and others, reported in (2007) 7 SCC 623 that a
criminal matter cannot be dismissed for default and it must be
decided on merits.
So, the instant matter is taken up for disposal on merit.
The facts leading to filing of this criminal revision is that the
petitioner filed two applications before the learned trial court under
Sections 91 and 207 of the Code of Criminal Procedure with a prayer
for production of the CC Camera footage of the Hasnabad Police
Station for the period 12.09.2013 to 16.09.2013 as well as providing
him the relevant documents as per the relevant provisions of law.
After giving opportunity of being heard, the learned trial court
rejected both the applications filed by the accused/petitioner.
Being aggrieved and dissatisfied with the said impugned order
passed by the learned trial court, the accused/petitioner preferred
this criminal revisional application before this Court.
It is profitable to quote the observations of the Hon'ble Apex
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Court in case of Kamlesh Kumar and Ors. vs. State of Jharkhand
and Ors., reported in 2009 Cri. L.J. 2247, wherein the Hon'ble
Apex Court observed at paragraph 46 inter alia that:
"While the revisional power of a superior court actually
enables it to correct a grave error, the existence of that power
does not confer any corresponding right on a litigant. This is
the reason why, in a given case, a superior court may decline
to exercise its power of revision, if the facts and circumstances
of the case do not warrant the exercise of its discretion. This is
also the reason why it is felicitously stated that a revision is
not a right but only a "procedural facility" available to a party.
If the matter is looked at in this light, the transfer of a case
from a Magistrate to a Special Judge does not take away this
procedural facility available to the petitioners. It only changes
the forum and as already held above, the petitioners have no
right to choose the forum in which to file an appeal or move a
petition for revising an interlocutory order."
Let us see whether the order of rejection of the applications
under Sections 91 and 207 of the Cr.P.C. is an interlocutory order
and whether revision lies against that interlocutory order or not.
The provisions under Section 397 gives a power to this Court
for calling for the records for the purpose of satisfying itself as to the
correctness, legality or propriety for any finding, sentence or order
recorded or passed or to satisfy itself as to regularity of any
proceedings of such inferior court. The duty is cast on this Court
before passing an order in a revision proceeding to satisfy itself
about the correctness of the order passed. That leaves no room for
the Court to dismiss the criminal revision in default. If the party,
who moved the Court in revision, does not appear the Court has no
option but to examine the record and satisfy himself whether
revision is to be allowed or dismissed.
An intermediate order is one, which is made between the
commencement of an action and the entry of the judgment. The
natural and logical meaning of an interlocutory order, the conclusion
is inescapable that an order, which does not terminate the
proceedings or finally decides the right of the parties, is only an
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interlocutory order. In other words, in ordinary sense of the term
interlocutory order is one, which decides a particular aspect or a
particular issue or particular matter in a proceeding or trial, but it
does not however conclude the trial at all.
According to Section 397(2) Cr.P.C., the revision against an
interlocutory order is not maintainable. It is well settled that in
deciding whether an order under challenge is interlocutory or not as
far as Section 397(2) Cr.P.C. is concerned, the sole test is whether
such order was passed during the interim stage. If the order under
challenge culminates the criminal proceeding as well or finally
decides the rights and liabilities of the parties, then the order passes
is not interlocutory in spite of the fact that it was passed during any
interlocutory stage. The test is whether by upholding the objections
raised by the party it would result in culminating the proceeding if so
any order passed on such objections would not be merely
interlocutory in nature as envisaged in Section 397(2) Cr.P.C.
It is profitable to quote the observations of the Hon'ble Apex
Court in case of Sethuraman vs. Rajamanickam, reported in 2009
Cri.L.J. 2247. In the above preferred case of Sethuraman (Supra),
the Hon'ble Apex Court observed inter alia that:
"Secondly, what was not realized was that 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. The
Trial Court, in its common order, had clearly mentioned that
the cheque was admittedly signed by the respondent/accused
and the only defence that was raised, was that his signed
cheques were lost and that the appellant/complainant had
falsely used one such cheque. The Trial Court also recorded a
finding that the documents were not necessary. 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 in nature, in which case,
under Section 397(2), revision was clearly not maintainable.
Under such circumstances, the learned Judge could not have
interfered in his revisional jurisdiction. The impugned
judgment is clearly incorrect in law and would have to be set
aside. It is accordingly set aside. The appeals are allowed."
The Hon'ble Apex Court in the above preferred case held that
revision against an order rejecting application under Section 91
Cr.P.C. was the order of interlocutory in nature in which case under
Section 397(2) Cr.P.C. revision petition was clearly not maintainable.
So, it is clear that in this case learned trial court has passed
an order on an application under Section 91 Cr.P.C. and the revision
would not lie against that interlocutory order passed by the learned
trial court.
An important thing is to be noted that power is vested with the
Magistrate to direct supply of documents under Section 207 Cr.P.C.,
but as per the provisions of Section 207 Cr.P.C., in certain cases the
Magistrate may restrict the right of the accused and in Sethuraman
(Supra), the Hon'ble Supreme Court considered the distinction
between the revisible and non-revisible order and took into
consideration the fact whether the order in any manner decided
anything finally.
In the instant case as well, the order under Section 207
Cr.P.C, is not decided anything finally and, thus, it may termed as
interlocutory order for the purpose of bringing the jurisdiction of the
High Court under Section 397 Cr.P.C.
I am of the considered opinion that Section 207 Cr.P.C. though
of paramount importance neither terminates the proceedings nor
concludes the trial. It mere decides a particular aspect of a particular
issue or a particular matter in a proceeding.
On the issue pertaining to supply of documents nothing less
nothing more is an order of exercising powers under Section 207
Cr.P.C. is nothing more an intermediate order, which clearly falls
within the meaning of interlocutory.
In view of the above discussion, I find that the instant
revisional application is liable to be rejected as not maintainable.
Thus, the criminal revisional application is dismissed as not
maintainable.
Interim order, if any, stands vacated.
Let a copy of this order be sent to the learned Trial Court for
information and necessary compliance.
(Prasenjit Biswas, J.)
