Final Order 1

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SHRI BHUPINDER SINGH,
ADDITIONAL SESSIONS JUDGE-05, CENTRAL DISTRICT, TIS
HAZARI COURTS, NEW DELHI
REVISION PETITION NO. 541/2025 OF 2022
DLCT01-014349-2025
IN THE MATTER OF:
Sh. Ankit Jain,
S/o Late Sh. Ravinder Jain
R/o WZ-89, Nimri Village,
Shastri Nagar, Delhi-52
..…..Revisionist
Versus
Ram Prakash
S/o Sh. Bishesar Nath,
R/o B-1396, Shastri Nagar, Delhi-52 ……..Respondent
Instituted on
: 20.09.2025
Reserved on
: not reserved
Pronounced on : 20.09.2025
JUDGMENT
1. Vide instant revision petition, revisionist takes exception to
the order dated 06.09.2025, passed by Ld. JMFC NI Act ( Digital)-04,
Central District, Tis Hazari Courts, Delhi, in case bearing CT No.
820/2021, titled as “
Ram Prakash Vs Ankit Jain”, whereby his
application under section 311 Cr.P.C seeking recall of the Respondent /
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Complainant for cross examination, stood dismissed.
2. Brief facts may be taken note of: A complaint under section
138 of The Negotiable Instruments Act (hereinafter called as NI Act)
came to be filed by complainant/respondent , alleging that revisionist
issued a cheque in discharge of his legal liability and despite service of
legal notice, failed to pay the cheque amount. On being summoned, the
revisionist is facing trial for the said offence before Ld. Trial Court.
3. Vide impugned order dated 06.09.2025, Ld. Trial Court
dismissed the application of revisionist moved under section 311 Cr.PC
( u/s 348 of BNSS), observing that the complainant i.e. CW-1 was cross-
examined at length by Ld. Counsel for the accused and thereafter,
discharged on 16.04.2025. For the sake of convenience, the relevant
observation of Ld Trial Court is reproduced below:-
“ 6. In the present factual matrix, accused has filed an
application to recall the complainant CW-1 for further cross-
examination. AS per the application, the examination of said
witness is necessary to pout questions as to his financial capacity.
7. Perusal of teh record shows that present case is listed for final
arguments since last three dates of hearing. The complainant CW-1
was cross-examined at length by the Ld. Counsel for the accused
and thereafter, discharged on 16.042025.
8. It is pertinent to mention that the alleged fact that previous
counsel has not conducted the case in fair and justifiable manner is
not a ground to recall any witness for further cross examination.
Moreover, the present application is moved by the accused at a
belated stage.
9. thus, in view of the contextual facts and above mentioned
discussion, application filed by the accused stands dismissed at this
stage.”
4. The revisionist is aggrieved with the impugned order and has
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assailed the same for the reasons that the cross-examination was
conducted by previous counsel and later on, accused appointed a new
counsel, who after going through the complete case, found out that some
very important aspect are still unfolded which surely impact the final
outcome of the present case and that the order of Ld. Trial Court not
giving opportunity for the same by dismissing the application u/s 311 of
Cr.P.C is against settled Principles of Law and is liable to be set aside.
5. At the outset, Ld. counsel for revisionist was requested to
satisfy about the maintainability of present petition as the impugned order
appears to be interlocutory in nature. It was argued that the same is
maintainable as per provisions of u/s 397 of Cr.P.C and has relied upon
the judgment titled as
Sarvesh Mathur Vs. State of NCT of Delhi 292
(2022) Delhi Law Times 518.
6. I have perused the available record.
7. The first question to be decided by this Court is whether the
present revision petition is maintainable in view of the bar created by
provisions of Section 438(2) BNSS(in pari materia with Sec 397 Cr.P.C ).
Here, it will be relevant to reproduce relevant portion of Section 438
BNSS which is as under:-
438. 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,
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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 be suspended, and if the
accused is in confinement that he be released on his own bond or
bail 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 purposes of this sub-section
and of section 439.
(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)If an application under this section has been made by any
person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by the
other of them.
8. In the judgment Amar Nath & Ors. V. State of Haryana &
Another, (1977) 4 Supreme Court Cases 137, the Hon'ble Supreme Court
while interpreting “Interlocutory order” has observed:-
“It seems to us that the term “interlocutory order” in Section
397(2) of the 1973 Code has been used in a restricted sense and not
in any broad or artistic sense. It merely denotes orders of a purely
interim or temporary nature which do not decide or touch the
important rights or the liabilities of the parties. Any order which
substantially affects the right of the accused, or decided 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 particular provision in Section 397 of the 1973
Code. Thus, for instance, orders summoning witnesses, adjourning
cases, passing orders for bail, calling for reports and such other
steps in aid of the pending proceeding, may no doubt amount to
interlocutory orders against which no revision would lie under
Section 397(2) of the 1973 Code.”
9. In the judgment of Neelam Mahajan & another Vs. The State
& Ors. dated 08.04.2016, Hon'ble Delhi High Court has observed as
under:-
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“Applying these tests to the impugned order, this Court finds
that the order permitting the re-examination of the petitioners is
purely an interlocutory order as it does not terminate the
proceedings but the trial goes on until it culminates in acquittal or
conviction. Furthermore, it is impossible to spell out the concept of
an interlocutory order unless it is understood in contradistinction to
or in contrast with a final order.”
10. Further, in the judgment of Varun Aggarwal Vs. State of NCT
of Delhi & Anr., Crl.M.C. No. 2424/2017, Hon'ble Delhi High Court after
referring the judgment passed by Hon'ble Supreme Court in “Amar Nath
& Ors. V. State of Haryana & Another” observed that the order passed by
Ld. MM closing the right of complainant to examine Forensic Expert was
held to be interlocutory order and consequently revision was held to be
not maintainable.
11. Similarly, in the judgment of Sethuraman Vs. Raja
Manickam, (2009) 5 SCC 153, the Hon'ble Supreme Court observed that
the order refusing to call the documents and rejecting application U/S 311
CrPC are interlocutory orders and as such, revision against these orders
are clearly barred U/s 397(2) CrPC. The judgment relied upon by the Ld.
Counsel for the revisionist is not applicable to the facts in hand.
12. Now turning to the facts of the present case: Ld. Trial Court
vide impugned order, dismissed the application of revisionist moved
under section 311 Cr.PC seeking recall of complainant/respondent for
cross examination. The impugned order does not terminate the
proceedings. It is clear that impugned order is merely a procedural order
and therefore falls within category of 'interlocutory order', hence the
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present revision petition is not maintainable and same is liable to be
dismissed in view of bar created by Section 438 of BNSS ( para materia
with Section 397 (2) CrPC) in view of the law laid down in 'Sethuraman'
(Supra).
13. Even otherwise, Hon’ble Supreme Court of India in
State of
Haryana Vs. Ram Mehar & Ors, 2016 (8) SCC 762 has observed that the
Court should not recall the prosecution witnesses for cross-examination
u/s 311 of Cr.P.C merely because previous defence counsel failed to put
certain questions. It was emphasized that recalling of witness u/s 311 of
Cr.P.C is for a just decision and to uncover truth, not fill the gaps or
address the accused’s choice of counsel.
14. With these observations, present revision petition stands
dismissed being non-maintainable.
15. Copy of the judgment be sent to Ld. Trial court for
information.
16. Revision file be consigned to Record Room after due
compliance.
Announced in the open (BHUPINDER SINGH)
Court on 20th September 2025 Additional Sessions Judge-05,
Central,Tis Hazari Courts, New Delhi
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