Ripen Kumar vs Department Of Customs
2000 Latest Caselaw 1042 Del

ORDER

Usha Mehra, J.

1. The petitioner has raised questions of law which have far reaching effect, namely:-

1) Whether an order, passed in exercise of revisional powers under Cr.P.C. by a Sessions Judge can be set aside by his successor at the instance of the same petitioner when it was not challenged further.

2) Whether such an order, assuming it was passed not in revisional jurisdiction, attain finality?

3) Whether the word 'evidence' includes the statement in examination-in-chief of the witness who was not cross-examined fully ?

4) Whether a Sessions Judge can review an order passed under Section 244 Cr.P.C. by his predecessor suo-moto regardless of the considerations of limitation under the Limitation Act ?

5) Can an Additional Sessions Judge before whom order of dis-

charge was challenged set aside previous order of another Addi-

tional Session Judge and give directions thereunder ?

2. Briefly stated the facts giving rise to the above questions are, that on 28th October,1987 a complaint under Section 135(1)(b) of the Customs Act,1962 and Section 85 of the Gold (Control) Act,1968 was filed against the present petitioner in the court of learned Additional Chief Metropolitan Magistrate (in short learned ACMM). On 23rd August,1989 Inspector (Preventive) Customs (PW-1) was called to the witness box. His examination in-chief was recorded. To some extent he was cross-examined also. On one of the date of the cross-examination, adjournment was sought by counsel for the present petitioner for confronting the witness with some documents. Adjournment was granted. But thereafter the said witness Shri V.P.S. Khurana (PW-1) was not produced inspite of number of opportunities having been given to the Custom Department. At last on 21st November,1994 warning was also administered. On that day last opportunity was given to the prosecution to produce PW-1 for cross-examination. Inspite of the warning that evidence would be closed the prosecution did not produce PW-1 on the date fixed nor furnished any cogent reason for his non-appearance. Even thereafter six more opportunities were afforded to the prosecution to adduce the said witness. But prosecution failed to do so. Hence when PW-1 was not produced the learned ACMM Mrs.Sunita Gupta, vide her order dated 23rd July,1997 closed prosecution's pre-charge evidence as she found that neither any evidence was produced nor any explanation worth the name was tendered. The order of closure of pre-charge evidence was challenged by the Customs Department i.e. by the prosecution by way of revision. The said revision was heard by Shri N.K.Gupta, learned Additional Sessions Judge, who vide his order dated 29th July,1998 dismissed the revision, inter alia, on the ground that right of speedy trial had been infringed. Case had been pending for the last ten years but the prosecution did not care to complete even the pre-charge evidence. The learned Additional Sessions Judge held that the order of Mrs.Sunita Gupta, learned ACMM was unimpeachable. After dismissing the revision petition, he remanded the case to the Court of learned ACMM presided over by Mrs.Sangita Dhingra Sehgal. In the absence of any evidence the learned ACMM found that there was no incriminating case made out against the accused. Finding that the prosecution had failed to prove its case and, therefore, no reliance could be placed on the statement of the accused recorded under Section 108 of the Customs Act as the same was neither proved nor corroborated from any other material on record. She, therefore, discharged the accused i.e. the present petitioner. The order of discharge was assailed by the prosecution i.e. Custom Department (respond-

ent herein) by way of revision petition. It was listed before Shri G.P.Thareja, Additional Sessions Judge, New Delhi who by the impugned order not only set aside the order of discharge but also the order of closure of pre-charge evidence passed by Mrs.Sunita Gupta, learned ACMM and the revisional order passed by his predecessor Shri N.K.Gupta, learned Additional Sessions Judge, New Delhi thereby upholding the order of learned ACMM. The said impugned order has been assailed by the petitioner on the grounds enumerated above.

3. Before we deal with the questions raised, it would be expedient to understand what does the word "interlocutory order" stand for. Interpretation of the word "interlocutory order" as appearing in Section 397(2) of the Code of Criminal Procedure (in short Cr.P.C.) came up before the Apex Court in the case of Amarnath & Ors. Vs. State of Haryana & Ors., while interpreting the "interlocutory order" it observed that

"It is a term of well-known legal significance. "Interlocutory order" to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad and artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an "interlocutory order" so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this provision in Section 397 of the Code.

4. Admittedly, the orders which are passed as a step in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be "interlocutory order" so as to be outside the purview of the revisional jurisdiction. It is a well settled principle of law that right to prosecute carries with it the right to produce evidence in support of the charge and consequently if the right to produce evidence is denied wholly or in part that would certainly amount to adjudication of a right. Therefore, it would necessarily follows that when an order closing the pre-charge evidence is made, it is not merely an interlocutory order but creates a vested right in the accused to ask for his discharge.

5. Similarly in the instant case the order passed by Mrs.Sunita Gupta, the then learned ACMM cannot be called an interlocutory order. By virtue of the said order, as affirmed by Mr.N.K.Gupta, Additional Sessions Judge, the petitioner herein acquired valuable right of not being put on trial. The moment pre-charge evidence of the prosecution was closed which order was upheld by Additional Sessions Judge, predecessor of Shri G.P.Thareja gave a right to the accused to show that prosecution failed to establish its case. The consequence of which led to his discharge. Therefore, such an order cannot be said to be an interlocutory order. By the impugned order Shri G.P. Thareja, Additional Sessions Judge not only set aside the order of his predecessor Mr.N.K.Gupta, Additional Sessions Judge but also the order of closing pre-charge evidence by the then learned ACMM. The impugned order amounted denial of valuable right of the petitioner. The petitioner has been prejudiced. His right has been taken away because of the impugned order. The impugned order tantamount to putting the petitioner on trial again. Keeping in view the law as laid down by the Apex Court in Amar Nath's case (supra), it can be said in the facts of this case that since the prosecution's pre-charge evidence was closed, hence natural consequences was discharge of the petitioner. Moreover, closure of pre-charge evidence attained finality when the said order got affirmation by the Additional Sessions Judge on the revision filed by the Customs Department (respondent herein). The respondent did not challenge the order of Shri N.K.Gupta, Additional Sessions Judge nor at any stage made a request seeking opportunity to produce PW-1 for subjecting to cross-examination.

6. Perusal of the record show that the orders passed by Mrs.Sunita Gupta, the then learned ACMM and of Shri N.K.Gupta, Additional Sessions Judge had not been challenged in the second revision petition filed by the respondent which was listed before Shri G.P.Thareja, Additional Sessions Judge. Therefore, in our view, Mr.Thareja could not have dealt with the order of his predecessor Shri N.K.Gupta, Additional Sessions Judge as well as of the then learned ACMM. Mr.G.P.Thareja was not sitting in appeal over the order of his predecessor Additional Sessions Judge, a Judge of concurrent jurisdiction. He could not have pronounced that the order passed by Shri N.K. Gupta, Additional Sessions Judge was bad in law. By doing so he exceeded his jurisdiction. He assumed the power which never vested in him. It is settled law that an Additional Sessions Judge of concurrent jurisdiction cannot sit over the judgment of another Additional Sessions Judge. It amounts to legal impropriety. Admittedly respondent had not challenged the order of Mr. N.K.Gupta, Additional Sessions Judge in its second revision filed before Mr.G.P.Thareja, but even for the sake of argument if it had been challenged then in that case second revision could not have been maintainable. It would have been barred by law as held by Allahabad High Court in the case of Muslim Bhoora Vs. State of U.P. & anr., 1996 Crl.L.J. 98. Thus by the impugned order the learned ASJ abused the process of his Court by assuming the powers which did not exist because firstly the order of Shri N.K.Gupta, Additional Sessions Judge was not under challenge before him and secondly he was not sitting in appeal over the said order. Such an action on the part of successor court is nothing but a legal impropriety. It could not have been said that the revision decided by Shri N.K.Gupta on merits after hearing the parties was not maintainable.

7. Now turning to the question as to what does the word "evidence" stand for. For that we can have quick glance to Section 244 Cr.P.C. which is reproduced as under :

244. (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing.

8. It must be remembered that evidence of Shri V.P.S. Khurana (PW-1) was closed after the learned ACMM had accorded number of opportunities. Evidence of PW-1 Mr.V.P.S.Khurana commenced on 23rd August,1989. It went on with several adjournments caused on account of the absence of PW-1. Even warning and last opportunity was administered by the learned ACMM to produce the said witness. Even thereafter six opportunities were given yet PW-1 was not adduced. Hence the then learned ACMM closed the pre-charge evidence on 23rd July,1997.

9. By the impugned order the learned Additional Sessions Judge surprisingly came to the conclusion that even the said incomplete statement of PW-1 should have been read in evidence. It ought to have been looked into as a supporting evidence to the statement recorded under Section 108 of the Customs Act. This observation of the learned ASJ is contrary to the well understood expression of the word "evidence". The words "all statements" include the examination-in-chief as well as the cross examination and subject to the permission re-examination also. It is only when the witness is permitted to be cross-examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross-examined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be cross-examined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part cross-examination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination-in-chief and cross-examination. That statement alone will form evidence. In the present case petitioner had been deprived to cross-examine PW-1 thereby dislodge his testimony. Hence incomplete statement of PW-1 in the absence of cross-examination could not be treated as evidence nor the same could be relied upon. Therefore the observation of learned ASJ that incomplete statement could have been the basis of deciding the question of charge is contrary to law. Part statement of PW-1 did not attain the status of evidence, nor on the basis of the same it could be said that statement of the accused recorded under Section 108 of the Customs Act stood proved.

10. In the first revision petition filed by the respondent it did not take any other plea except the ground that it being an economic offence case evidence of PW-1 ought not to have been closed. This argument did not find favour with the then Additional Sessions Judge. He, therefore, dismissed the revision on 29th July,1998. At no stage, request either oral or written was made by the respondent before the learned ACMM or for that matter before the learned ASJ to use coercive measures to enforce the presence of PW-1. In the absence of any such request couped with the fact that precharge evidence was closed and the said order having been affirmed there was no occasion for the learned ACMM Mrs.Sangita Dhingra Sehgal to exercise suo-moto powers and use coercive measure to seek the presence of PW-1. Admittedly under Section 311 of the Code learned ACMM was vested with the power to suo-moto call for the witness but in the peculiar facts of this case particularly when the order of her predecessor ACMM had been affirmed by the learned ASJ on the revision filed by respondent, she could not have exercised the said suo-moto power. It was neither justified nor permissible in law. It would amount to sitting in appeal over the order of her predecessor as well as of the learned ASJ.

11. While interpreting the power of the Court, as envisaged under Section 311 of the Code, Supreme Court in the case of Raj Deo Sharma Vs. State of Bihar, observed that the power of the Court under Section 311 of the Code in recalling the witness or summoning any person as a witness has not been curtailed by the Apex Court either in the case of A.R. Antuley or in the first Raj Deo Sharma's case. The Apex Court in Raj Deo Sharma's case (supra) observed that even if the prosecution evidence is closed, it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. It is, when the evidence of the prosecution is closed and the prosecution admits that the witness is essential for proving its case, the prosecution will have to make an application. At that stage the Court would exercise the power vested in it under Section 311 of the Code considering that the person to be summoned as a witness or who has to be recalled and re-examined is essential for the proper adjudication of the case. This discretion which is vested in the court under Section 311 of the Code is to be exercised judicially and not arbitrarily. In order to exercise this power the Court must have sufficient material before it to justify its action. Prosecution precharge evidence in this case was closed. It was for the prosecution to show that the said evidence was essential in proving the case of the prosecution. But the prosecution did not invoke the power of the Court under Section 311 of the Code either by making oral or written request. Therefore, non-exercise of the power under Section 311 of the Code by the learned ACMM in the facts of this case could not be deprecated.

12. In these circumstances, to our mind, Shri G.P. Thareja, Additional Sessions Judge could not have suo-moto given directions to learned ACMM to invoke her power under Section 311 of the Code and enforce the presence of PW-1. Such an observation in the face of the decision of Shri N.K. Gupta, the predecessor Court of Shri G.P. Thareja was not proper. The prosecution could have got the documents admitted or denied, but it never availed of that opportunity. The order of closure of evidence dated 23rd July, 1997 was not assailed before him. Therefore, by the impugned order, he could not have re-opened the said order particularly when that order could not have been said to be an interlocutory order. And the same having been affirmed by a competent court of Competent Jurisdiction, such an action on the part of successor Court was barred under law. Observation of Shri G.P.Thareja that material on record was sufficient to charge the respondent and in the absence of request from the respondent, the learned ACMM should have exercised the power under Section 311 Cr. P.C., to say the least such observations were unwarranted. Mr. O.N. Vohra rightly contended that the petitioner had no notice that Shri G.P. Thareja would be considering the order of the then learned ACMM dated 23rd July, 1997 and of Shri N.K. Gupta, learned ASJ dated 29th July, 1998. Mr. Vohra contended that the petitioner was taken by surprise during the course of arguments because he otherwise had no notice that learned ASJ was going to re-open the order which had already been affirmed and was not subject matter of revision before him. Mr.Vohra contended that if such an order is allowed then there would be no certain finality in judicial processing. We find force in these submissions. Criticism of the order passed by his predecessor would definitely shake the confidence of the public in the administration of justice.

13. For the reasons stated above, the impugned order cannot be sustained. The same is accordingly set aside.