Back
2017 Supreme(Gau) 445
IN THE GAUHATI HIGH COURT (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
HITESH KUMAR SARMA, J.
Bhabesh Sarmah, S/O Chandra Nath Sarmah - Petitioner
VERSUS
The State of Assam & Ors. - Respondents
Criminal Revision Petition No. 154 of 2017
Decided On : 25-05-2017
For the Petitioner: Mr. K Bhuyan, Mr. N Islam
For the Respondents: Ms. S Jahan, Addl. P.P.
Headnote:
Code of Criminal Procedure, 1973 - Section 311 – Indian Penal Code, 1860 - Sections 409 and 420 – Criminal Trial - Offences – Evidence - Petitioner, received an amount from respondent No2 for purchasing a new tractor, in presence of witnesses, undertaking to return the money to the respondent No2 with interest, if he fails to supply the tractor to him - Petitioner did not purchase the tractor and misappropriated the money – Held, No party in a trial can be foreclosed from correcting errors - If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified - After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better - Therefore, the argument of the learned counsel for the petitioner, in this count, is devoid of merit - It appears from the above decision that Court has ample power to take a decision, in a matter such as in the present proceeding, keeping in mind that it will be helpful in arriving at a just decision - Inadvertent mistake is not irreparable - There is no dispute at the bar that the impugned order is an interlocutory order - Section 397(2) of the CrPC expressly barred exercise of revisional power of the Court in relation to any interlocutory order - Petition dismissed
1. I have heard Mr. K Bhuyan learned counsel for petitioner and Ms. S Jahan, learned Additional Public Prosecutor, Assam.
2. This criminal revision petition is directed against the order dated 04-04-2017, passed in CR Case No. 1097/2013, by the learned Additional Chief Judicial Magistrate, Darrang, Mangaldai.
3. The complaint case before learned Additional Chief Judicial Magistrate, Darrang, Mangaldai is against the petitioner/accused for commission of alleged offences under Sections 409/420 of the IPC.
4. The petitioner, herein, received an amount of Rs. 3,50,000/- from complainant/respondent No. 2 for purchasing a new MF 1035 tractor for him, in presence of witnesses, on 20-12-2010, undertaking to return the money to the complainant/respondent No. 2 with interest, if he fails to supply the tractor to him. The accused/petitioner did not purchase the tractor and misappropriated the money.
5. The learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, took cognizance of the complaint against the accused/petitioner under Sections 409/420 of IPC and proceeded to examine the witnesses for the complainant/respondent No. 2.
6. After the complainant/respondent No. 2, as PW1, and some other witnesses, were examined, the complainant/respondent No. 2 filed an application before the learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, being No. 4278/2016, on 19-08-2016, under Section 311 of the Cr.P.C. with a prayer to the Court to re-call and re-examine PW1 as some vital points were inadvertently left to be disclosed during his examination-in-chief.
7. The petitioner filed objection to the said petition, vide No. 4278/2016. The accused/petitioner prayed the Court to reject the petition under Section 311 Cr.P.C. basically on the ground that (i) The lacuna in the evidence of PW1 could not be allowed to be filled up by re-examining him and (ii) That right to re-examination of a witness arises only after conclusion of evidence of all witnesses.
8. In the instant petition, in paragraph-4, the accused/petitioner is found to have submitted that although the complainant/respondent No. 2 did not categorically state as to what was left to be disclosed in the examination-in-chief of PW1, yet the learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, vide his order dated 04-04-2017, stated that PW1, i.e. complainant/respondent No. 2 wanted to exhibit a document, Xerox copy of which was already there in the case record.
9. It appears from the instant petition that the petitioner has prayed to set aside the order dated 04-04-2017 of learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, being illegal.
10. This Court has observed in this proceeding that this revision petition is filed against granting of permission for re-examination of PW1, under Section 311 Cr.P.C.
11. There is no doubt that rejection or grant of a prayer under Section 311 Cr.P.C. to recall or re-examine a witness, is an interlocutory order and no revision lies against such order. No whether in the Code of Criminal Procedure, Interlocutory Order has been defined. But the Hon’ble Supreme Court in the case of Smt. Parmeshwari Devi -vs- The State and another, reported in (1977) 1 SCC 169, the Hon’ble Supreme Court observed as follows:
“The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision
