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In the High Court of Bombay at Goa
C.V. BHADANG, J.
Deborah Mary Crasto Leclerc – Appellant
Versus
Patrick Oliver Leclerc – Respondent
Criminal Revision Application No. 23 of 2015
Decided On : 10-04-2015
The scope and ambit of the powers of a Criminal Court under Section 311 of Cr PC fell for consideration of the Hon’ble Apex Court in Rajaram Prasad Yadav, 2013 All SCR 2747 (supra). After taking a survey of the various decisions holding the field, it has been inter alia held that the object underlying Section 311 of Cr PC is that there may not be failure of justice on the ground of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses from either side. The determinative factor is whether it is essential to the just decision of the case. Such a power can be exercised at any stage of the enquiry or trial or other proceedings under the Cr PC. A caution has been sounded, inasmuch as the section confers very wide powers on the Court summoning the witnesses. The discretion conferred has to be exercised judiciously. As wider the power the greater is the necessity for application of judicial mind. (See Iddar and others v. Aabida and another, AIR 2007 SC 3029 : 2007 All MR (Cri) 2073 (SC). The Hon’ble Apex Court in the case of Rajaram Yadav (supra) has summarised the principles, that will have to be borne in mind by the Court, while dealing with the application under Section 311 of Cr PC, in paragraph 16 of the judgment. It has been held that power under Section 311 of the Cr PC must, therefore, be invoked by the Court only in order to meet the ends of justice for strong reasons and the same must be exercised with care, caution and circumspection.
Criminal Procedure Code, 1973 - Sections 311 and 397 Order summoning of material witness. - Where every order which is not final would not be necessarily interlocutory in nature. There impugned order was not regarded interlocutory because it affected/decided the rights of parties in relation to material controversy, revision against impugned order was held liable to be allowed. It would be first necessary to briefly deal with the submissions on the maintainability of the Criminal Revision Application on the ground that the impugned order passed by the Magistrate would be interlocutory in nature. On consideration of the submissions, Court is unable to persuade itself to hold that the impugned order would be in the nature of interlocutory order. It is trite that the term interlocutory order is not defined under the Cr PC. However, it is now well-settled that an interlocutory order is not converse of a final order. In other words, every order, which is not final, would not necessarily be interlocutory in nature.
There may be certain orders, which although not final, may still not be interlocutory. The impugned order would fall in the said category. This is because any order, which substantially or materially, affects/decides the rights of the parties, in relation to the material controversy in question, cannot be said to be interlocutory. Orders, which are purely incidental, for example, such as granting or refusing adjournment or which are in the nature of steps in aid, can be termed as interlocutory, so as to bar the revisional jurisdiction. A useful reference, in this behalf, may be made to the illustrated decision of the Hon’ble Supreme Court in the case of Madhu Limaye v. State of Maharashtra, 1978 Mh LJ 1 : 2007 All SCR (OCC) 191. In such circumstances, the objection raised in this regard, has to be refuted.
1. Admit.
2. Mr. Rao, the learned Counsel waives service.
3. Heard finally, with the consent of the learned Counsel for the parties.
4. By this Revision Application, the petitioner/ original applicant – wife, is challenging the judgment and order dated 05/02/2015 passed by the learned Sessions Judge, dismissing the appeal filed by the petitioner and thereby confirming the order dated 07/10/2014 passed by the learned Judicial Magistrate, First Class, Mapusa in Criminal Case No. OA/58/DVA/2012/A.
5. The brief facts, necessary for the disposal of the appeal, may be stated thus:
That the petitioner is the wife of the respondent. They are blessed with three children, namely a daughter and two sons. The daughter is said to be under vegetative state on account of an accidental injury. The present dispute pertains to an order, by which, the learned Magistrate has allowed the applications filed by the respondent /husband, thereby issuing summons, asking the two sons, namely Scott Leclerc and Brett Leclerc to remain present as witnesses on behalf of the respondent. It appears that on account of a matrimonial dispute between the parties, the petitioner has filed an application on 23/01/2012 under the Protection of Women from Domestic Violence Act, 2005 (the Act, for short) before the learned Magistrate, Mapusa for various reliefs. It is the material grievance of the petitioner that the respondent was indulging into acts of domestic violence. It is claimed that on certain occasions, the respondent had even assaulted the two sons, namely Scott Leclerc and Brett Leclerc in public place. It appears that, after the petitioner closed her side of the evidence, the respondent examined one Mark Anthony, an official from the Consulate as his witness. This was on 25/06/2014. The respondent is staying in France. It appears that subsequently, on 04/07/2014 and 09/07/2014, there was no appearance on behalf of the respondent. Hence, the learned Magistrate closed the evidence of the respondent on 19/07/2014. It is thereafter that on 01/08/2014 that the respondent filed two separate applications at exhibits D-55 and D-56, purportedly under Section 311 of the Criminal Procedure Code (Cr.P.C., for short) for summoning material witnesses. It was claimed that the sons Scott Leclerc and Brett Leclerc are material witnesses in respect of the enquiry. Scott Leclerc is said to be a minor while Brett Leclerc has attained majority. It was, therefore, prayed that a direction be issued to the petitioner to produce Scott Leclerc before the Court and for issuing a witness summons to Brett Leclerc.
6. The petitioner filed a reply to the applications, opposing the same. It was contended that the applications and the prayers are in the nature of abuse of the process of the Court. It was also contended that the respondent is not an accused and as such, cannot claim the benefit of the provisions of Section 311 of Cr.P.C. It was denied that the two sons are material witnesses. It is contended that the respondent is using blackmailing tactics to pressurise and traumatise the minor sons. It was also contended that, the minor son Scott Leclerc was due to leave Goa on 22/23-08/2014 to proceed abroad and the respondent for his oblique purpose, cancelled the said trip, stating to the Airlines that his son Scott Leclerc was wanted in a criminal case.
7. It was contended that the respondent has not yet stepped into witness box and it is only after the said respondent steps into witness box, that the application filed can be considered. It was contended that the respondent is trying to drag the children into the rigors of the litigation, while he himself is shying away from deposing in the matter and is engaging into dilatory tactics. It is submitted that in such circumstances, no case for exercise of discretion under Section 311 of Cr.P.C. is made out.
8. The learned Magistrate, on hearing the parties, by an order dated 07/10/2014, allowed the applications at exhibits D-55 and D
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