Anil Kumar vs Sunita & Ors.
2013 Latest Caselaw 835 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 19th February, 2013
+         CRL. A.774/2011

          ANIL KUMAR                            ..... Appellant
                             Through:     Mr. R.S. Kansotia with Mr. Y.S. Verma,
                                          Advocates.


                                        versus

          SUNITA & ORS.                        ..... Respondents
                             Through:     Ms. Rashmi Jain, Advocate.

          CORAM:
          HON'BLE MR. JUSTICE G.P.MITTAL

                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is directed against an order dated 26.04.2011 passed by the Judge, Family Court whereby an Application under Section 311 Code of Criminal Procedure ("the Code") preferred by the Appellant for recalling the Respondent was dismissed.

2. Section 19 of the Family Courts Act, 1984(the Act) permits a party aggrieved of any judgment or order not being an interlocutory order to file an Appeal to the High Court both on facts and on law.

3. Appeal is creature of a statute. Thus, this Court is, therefore, first required to consider whether an Appeal is maintainable against such an order and secondly, whether there is any merit in the plea taken by the Appellant.

4. As stated above, Section 19 of the Act allows a party to file an Appeal against any judgment or order not being an interlocutory order. By virtue of the impugned order, an Application under Section 311 of the Code moved by the Appellant for recalling the Respondent for further cross- examination was dismissed by the Judge, Family Court. A latest judgment of the Supreme Court in Sethuraman v. Rajamanickam, (2009) 5 SCC 153 is an answer to the question whether an order rejecting the Application under Section 311 of the Code is an interlocutory order. In Sethuraman, the Supreme Court laid down that such an order would be only an interlocutory order against which no Revision Petition under Section 397 of the Code would be maintainable. Para 5 of the report is extracted hereunder:

"5.....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 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...."

5. A similar view was taken by a Co-ordinate Bench of this Court in Kaushalya Rani v. Municipal Corporation of Delhi & Anr., (1999) 79 DLT 709.

6. Thus, in view of the authoritative pronouncement of the Supreme Court in Sethuraman, neither an Appeal under Section 19(1) nor a Revision under Section 19(4) of the Act is maintainable against the impugned order.

7. Otherwise also, the ground taken up by the Appellant for setting aside of the impugned order is that the counsel for the Appellant could not effectively cross-examine the witness as he was unwell. A perusal of the record reveals that the affidavit of the Respondent was sworn on 29.04.2010 and the same was proved by her in her statement on 21.08.2010. The Respondent was duly cross-examined by the counsel for the Appellant on 08.03.2011 and the case was adjourned for 26.04.2011 for remaining evidence of the Respondent. Admittedly, the Application under Section 311 of the Code was moved by the Appellant only on 26.04.2011, that is, on the next date of hearing. Although, under Section 311 of the Code, the Court has very wide powers to summon any witness or recall and re-examine any person already examined, yet the powers can be used only on justifiable ground and must be exercised for just decision of the case. If the counsel for the Appellant was really not too well on 08.03.2011 and even if no such request was made on 08.03.2011, the Appellant at least would have made such a request immediately after 08.03.2011. The Appellant would not have waited for the next date to move such an Application. The only inference that can be drawn was that the Application was an afterthought to recall the

Respondent for further cross-examination with an oblique motive or to delay the case. Thus, although neither an Appeal nor a Revision is maintainable against the impugned order, yet even on merits I do not find any ground to interfere with the impugned order.

8. The Appeal is accordingly dismissed.

9. Pending applications also stand disposed of.

(G.P. MITTAL) JUDGE FEBRUARY 19, 2013 pst