Final Order 2

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SHRI KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
Cr Rev. No. 242/2024
CNR No. DLSH01-007303-2024
1. M/s. N Square Hospitality LLP,
Through it’s Authorized Signatory,
Mohammad Nadeem Khan.
2. Mohammad Nadeem Khan,
(Partner of M/s. N Square Hospitality LLP)
S/o Mohd. Saleem Khan,
R/o 7, Mirchi Tola, Kali Nadi,
Old Tehsil Road, Bulandshahar,
U.P. 103001.
Also at: C-9/8, F/F,
Yamuna Vihar, Delhi-110053.
Also at: F-19, Third Floor,
Preet Vihar, Delhi.
3. Naveen Ali,
(Partner of M/s. N Square Hospitality LLP)
S/o Sh. Zulfikar Ali,
R/o N-39, Gali No. 2M,
Bajrangbali Mohalla,
Maujpur, Delhi-110053.
Also at: C-9/8, F/F,
Yamuna Vihar, Delhi-110053.
Also at: F-19, Third Floor,
Preet Vihar, Delhi.
Revisionists…
Versus
1. The State, Govt. of NCT of Delhi,
Through SHO, PS, Vivek Vihar, Delhi.
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2. Sh. Sunil Dhingra,
S/o Lt. Sh. H R Dhingra,
R/o D-111, Surajmal Vihar,
New Delhi-110092.
Respondents….
04.04.2025
Present:- None for revisionists.
Sh. Sobit, Ld. Addl. PP for the State.
ORDER
1. The present revision has been filed by the
revisionists for setting aside the order dated 25.07.2024 passed
by Ld. JMFC, (NI Act) Shahdara, Delhi vide which Ld. Trial
Court imposed the cost of Rs. 2,000/- upon the revisionists.
2. It is argued by Ld. Counsel for the revisionists that
the complainant filed a criminal complaint case u/s 138 NI Act
against all the revisionists, which is pending before the Ld. Trial
Court. On 30.03.2024, all the revisionists informed their counsel
to appear before the Ld. Trial Court as they were unable to
appear and Ld. Counsel assured them that he would appear on
their behalf, but he failed to appear and Ld. Trial Court issued
NBW against them and this fact came to their knowledge when
in their absence, the police officials visited their residence. On
25.07.2024, all the revisionists appeared before the Ld. Trial
Court with the application of cancellation of NBW and Ld. Trial
Court stayed their NBW and imposed the cost of Rs. 2,000/-
upon revisionists.
3. It is further submitted that Ld. Trial Court passed a
harsh order, beyond the capacity of the revisionists and based on
surmises and conjectures, hence the impugned order dated
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25.07.2024 is liable to the set aside being illegal, improper,
unjustified, perverse, wrong and against the basic provisions of
law and was passed in a very casual and mechanical manner and
is not tenable in the eyes of law. The present revision petition is
maintainable u/s 397 Cr.P.C. as the order dated 25.07.2024 is not
an appealable order and the same is perverse and material
irregularity has been caused and the revisionists have right to
challenge the impugned order and they have not filed any other
criminal revision petition before any other Court.
4. On the contrary, it is submitted by Ld. Addl. PP for
the State that the order of Ld. JMFC has been passed judiciously
and is legally sound and there is no illegality or incorrectness in
the order of Ld. Trial Court and the said order is an interlocutory
order and revision is not maintainable.
5. Heard and perused the record.
6. By way of present revision, the revisionists have
assailed the order of Ld. Trial Court dated 25.07.2024 vide which
cost of Rs. 2,000/- was imposed upon them. The revisionists have
not filed any PF in the present revision for summoning the
respondent and even neither revisionists nor counsel appeared.
The revision is being decided on merits as it cannot be dismissed
in default. In
K S Panduranga Vs. State of Karnataka AIR, 2013
SC 2164, it was held that the appeal can be decided in the
absence of counsel. The revisionists have not appeared
deliberately to cause delay and the said judgment will also be
applicable for revision.
7. Coming into the merits of the case. TCR reveals that
on 30.03.2024, none appeared on behalf of accused/revisionists
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and the Ld. Trial Court was pleased to issue NBW against them
for non-appearance and matter was adjourned to 25.07.2024. On
25.07.2024, an application for cancellation of NBW was filed on
behalf of accused/revisionists on the ground that grand-father of
revisionist no. 2 had expired, but they were unable to tell the date
of death and stated that 40th (Chaliswa) was on 29.03.2024, after
much questioning from court, which is contrary to submission in
the application that accused persons were not well and admitted
that they were not aware of last date of hearing.
Due to contrary versions, the NBWs were stayed
subject to payment of cost of Rs. 2,000/- per accused in DLSA
i.e. for 3 accused, Rs. 6,000/- in total.
8. Calling for records to exercise powers of revision.
Section 438 (1) BNSS [397 (1) Cr.P.C.]:
The High
Court or any Sessions Judge may call for and examine the record of any
proceedings before any inferior Criminal Court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself as to the
correctness, 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.
Section 438 (2) BNSS [397 (2) Cr.P.C.]:
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.
9. As per Section 438(2) BNSS, the revision petition is
barred against an interlocutory order passed in any appeal,
inquiry, trial or other proceeding. Interlocutory order is an order,
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which is not a final order and it merely decides some point or
matter essential to the progress of suit or collateral to the issues
sought, but is not a final decision or judgment on the matter in
issue. Where some fact or aspect of a controversy in the course of
adjudication of the main dispute between the parties is disposed
of by an order, which has not the effect of finally deciding the
dispute, such order would be an interlocutory order and such
orders are purely interim or temporary in nature, which do not
decide or touch upon the important rights or liabilities of the
parties.
10. What is an ‘interlocutory order’ has been discussed
by the Apex Court in the decision reported as
(1977) 4 SCC 137
Amar Nath Vs. State of Haryana:
6. Let us now proceed to interpret the provisions of Section
397 against the historical background of these facts. Sub-section (2) of
Section 397 of the 1973 Code may be extracted thus:
“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.”
The main question which falls for determination in this
appeal is as to what is the connotation of the term “interlocutory order” as
appearing in sub-section (2) of Section 397 which bars any revision of such
an order by the Hon’ble High Court. The term “interlocutory order” is a
term of well-known legal significance and does not present any serious
difficulty. It has been used in various statues including the Code of Civil
Procedure, Letters Patent of the High Courts and other like statutes. In
Webster’s New World Dictionary “interlocutory” has been defined as an
order other than final decision. Decided cases have laid down that
interlocutory orders to be appealable must be those which decide the right
and liabilities of the parties concerning a particular aspect. It seems to us
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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 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 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 proceedings, may no
doubt amount to interlocutory orders against which no revision would lie
under Section 397 (2) of the 1973 Code. 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 of the High Court.
11. Order passed by the trial court imposing cost upon
the revisionists for staying the NBW is purely an interlocutory
order as it does not finally decide any issue between the parties
or terminate any proceeding or issue between them and is an
interim order during trial and as such, the revision against order
dated 25.07.2024 is clearly barred u/s 397(2) Cr.P.C.
12. In the case of
K K Patel Vs. State of Gujarat (2000)
6 SCC 195, the Hon’ble Supreme Court of India held thus:
“It is now wellnigh settled that in deciding whether an order
challenged is interlocutory or not as for Section 397(2) of the Code, the sole
test is not whether such order was passed during the interim stage (vide
Amar Nath vs. State of Haryana, Madhu Limaye v. State of Maharashtra,
V.C Shukla v. State through CBI and Rajendra Kumar Sitaram Pande v.
Uttam). The feasible test is whether by upholding the objections raised by a
party, it would result in culminating the proceedings, if so any order passed
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on such objections would not be merely interlocutory in nature as envisaged
in Section 397(2) of the Code. In the present case, if the objection raised by
the appellants were upheld by the Court the entire prosecution proceedings
would have been remained. Hence, as per the said standard, the order was
revisable.” (emphasis supplied)
13. The Hon’ble Delhi High Court also in the case of
Neelam Mahajan v. The State, Cr. MC 2242/2014 decided on
08.04.2016 held that an interlocutory order would not cease to be
interlocutory order merely because it disposes of an aspect in the
course of proceedings even though adversely affecting a party for
the time being.
CONCLUSION
14. In view of above discussion, I am unable to find any
illegality, incorrectness or impropriety in the impugned order
dated 25.07.2024, so the present revision petition is dismissed.
The Revision Petition is disposed of accordingly.
The accused persons/revisionists are directed to
appear before the Ld. Trial Court on 09.04.2025.
Trial Court record be sent back to the concerned Ld.
Trial Court along with copy of this order.
File be consigned to Record Room after necessary
compliance.
(Kumar Rajat)
ASJ-07/SHD/KKD Courts/Delhi
04.04.2025
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