Mohammad Umar vs Gyanchand
2022 Latest Caselaw 6400 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2162/2022

Mohammad Umar S/o Shri Karimji, Aged About 52 Years, R/o 72, Chipo Ki Dhal, Outside Badi Brahmpuri, District Pali (Raj.)

----Petitioner Versus

1. Gyanchand S/o Shri Achalchand, Aged About 46 Years, R/ o 36, Zuro Ka Bas, District Pali (Raj.)

2. The State Of Rajasthan, Through Its Pp

----Respondents

For Petitioner(s) : Ms. Madhu Khatri for Mr. Sanjeet Purohit For Respondent(s) : Mr. Mahipal Bishnoi, PP

JUSTICE DINESH MEHTA

Order

02/05/2022

1. By way of the present petition filed under Section 482 of the

Code of Criminal Procedure, the petitioner has challenged the

order dated 02.09.2021 passed by learned Sessions Judge, Pali

(hereinafter referred to as 'the Revisional Court').

2. The precise facts relevant for the present purposes are that

the petitioner is an accused in a Criminal Case No.2289/2017 in

which the complainant's evidence was closed by the learned

Special Judicial Magistrate (N.I. Act Cases), Pali (hereinafter

referred to as 'the trial Court') vide its order dated 24.01.2020.

3. Thereafter an application under Section 311 of the Code was

filed by the complainant, which was rejected by the trial Court

vide order dated 11.02.2020, whereagainst the respondent -

(2 of 3) [CRLMP-2162/2022]

complainant preferred a revision petition under Section 397 of the

Code.

4. Learned Revisional Court allowed the revision petition vide

its order dated 02.09.2021 and granted one opportunity to the

complainant to lead evidence.

5. Ms. Khatri, learned counsel for the petitioner, submitted that

a specific objection regarding maintainability of revision petition

against an order passed in an application filed under Section 311

of the Code was raised by the petitioner but the Revisional Court

has not properly understood the law on the subject and held the

revision petition as maintainable and allowed the respondent an

opportunity to lead evidence.

6. It is argued that various judgments on the issue were cited

out of which the judgment of Hon'ble the Supreme Court rendered

in the case of Amar Nath & Ors. Vs. State of Haryana and

Anr. Reported in (1997) 4 SCC 137 was dealt with by the

Revisional Court and that too incorrectly holding the revision to be

maintainable.

7. Heard learned counsel for the petitioner and learned Public

Prosecutor.

8. According to this Court, against an order (rejecting or

accepting) passed on an application under Section 311 of the

Code, an interlocutory order and revision is expressly barred by

sub-section (2) of Section 397 of the Code. A gainful reference of

the judgment of Hon'ble the Supreme Court in the case of

Sethuraman Vs. Rajamanickam reported in (2009) 5 SCC

153 can be made here.

9. The impugned order passed by the Revisional Court on the

question of jurisdiction is thus, unsustainable.

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                                   10.   Be that as it may.

11. Since the order was passed on 02.09.2021 and learned

counsel is not in a position to apprise as to whether the

respondent has availed of the opportunity to lead evidence, this

Court does not deem it proper to interfere in it, as substantial

justice has been done and an opportunity of leading evidence has

been provided to the complainant, which this Court would also

have allowed, if the same were prayed by a petition under Section

482 of the Code.

12. Hence, even if the order impugned is illegal but ultimately a

correct order has been passed, I do not want to upturn it, as it

would unnecessarily delay the proceedings.

13. The misc. petition stands disposed of.

14. Stay application too stands disposed of accordingly.

(DINESH MEHTA),J 40-skm/-

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