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2016 Supreme(P&H) 637

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Fateh Deep Singh
CRM-M No.15173 of 2012 (O&M)
Uppal Credit & Investment Pvt. Ltd.
v.
Ashwani Kumar
{Decided on 22/03/2016}

Advocates:
For the Petitioner:Mr. M.S. Sachdev, Advocate.
For the Respondent:Mr. Parshant Sareen, Advocate.

Headnote:Examination of Witness--Dismissal of application u/s 311 CrPC for examination of witness by trial court--Revision lies against such order u/s 399 CrPC before session judge.

       (A) Criminal Procedure Code, 1973, S.311 & S.397--Examination of Witness--Interlocutory orders--Revision--Dismissal of application u/s 311 CrPC for examination of witness by trial court--Revision lies against such order u/s 399 before session judge.

       The ratio laid down in ‘Adalat Prasad’s case (ibid) provides that the only remedy to an accused person to challenge an order in the interlocutory stage where ends of justice demand is an extraordinary remedy under Section 482 of the Code of Criminal Procedure and is only permissible if there is no remedy under the Code and thus, sufficiently clarifies under what occasions powers under Section 482 of the Code can be exercised.

       (B) Negotiable Instruments Act, 1881, S.138--Dishonour of Cheque--Examination of witness--Application of complainant for examination of two witness are dismissed--Held; in view of plea of the petitioner that examination would take the proceedings to final stage; such order is subject to revision--Application allowed--Criminal Procedure Code, 1973, S.311 & S.397.

       

JUDGMENT

Mr. Fateh Deep Singh, J.:- Though with the sole aim and object to bring about uniformity in the criminal procedure in our country, the framers had meandered through overhauling the criminal law which was earlier governing the Presidency Towns and erstwhile provinces through Criminal Procedure Act (16 of 1852), Criminal Procedure Supreme Courts Act, High Court Criminal Procedure Act (12 of 1865), Act 10 of 1872 leading to consolidation of these laws under Criminal Procedure of 1882 (10 of 1882), which was further replaced by Code of Criminal Procedure 1898 (5 of 1898). Having undergone repeated metamorphosis in 1923, 1955 with State amendments and finally the Code of Criminal Procedure 1973 came into being by Act 2 of 1974. The primary aim was not only to simplify the procedure and speed-up trials but also to remove anomalies and ambiguities brought about by conflicting decisions of the various High Courts and divergent expression of opinions by the Hon’ble Apex Court. But inspite of the same, certain grey areas still remain which precisely has led to this imbroglio in this petition filed under Section 482 Cr.P.C. by way of exercise of inherent powers by this Court. The brief facts which deserve to be recapitulated are as follows:-

2. A criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short, ‘the Act’) was preferred by complainant, present petitioner, M/s Uppal Credit & Investment Private Limited against accused, present respondent, Ashwani Kumar over a dispute pertaining to dishonour of cheque bearing No.032102 dated 30.05.2009 for a sum of Rs.5.00 lacs drawn on Centurion Bank Ltd., Jalandhar (now HDFC Bank). After summoning of the respondent as an accused and during the course of trial, an application (Annexure P6) under Section 311 of the Code of Criminal Procedure (hereinafter referred to as, ‘the Code’) was moved by the complainant/petitioner for seeking examination of two witnesses Sandeep Kumar, Accountant and Harish Vijan on the grounds of being conversant with the facts and essential for judicious determination of the dispute. In his reply (Annexure P7), the accused had denied the averments of the application refuting that the said witnesses were having any knowledge, and hence denying the contentions of the application sought its dismissal. It is vide orders dated 22.03.2012 (Annexure P1) of the Court of learned Judicial Magistrate 1st Class, Jalandhar, the application in question stood declined and dismissed. It is thus, aggrieved over these findings, the present complainant/petitioners have preferred to challenge the same in this petition under Section 482 Cr.P.C. seeking quashment of the impugned orders.

3. Heard Mr. M.S. Sachdev, Advocate for the complainant/petitioner and Mr. Parshant Sareen, Advocate on behalf of the accused/respondent.

4. The very contentions whether a petition under Section 482 of the Code of Criminal Procedure lies or that the impugned orders were revisable orders and thus, amenable to revision in terms of Section 397/399 of the Code, have been sought to be supported as well as refuted by the respective counsels intending to advance the case of their respective sides.

5. No doubt, the very provisions of Section 397 Sub-Section (2) of the Code have put up a rider that no such powers of revision either by the High Court or any Sessions Judge can be exercised in relation to an interlocutory order which is undisputedly a statutory provision. It needs to be referred here that the very object of providing revision is to set right a patent defect or an error of jurisdiction or law. There has been disparity over the views expressed by various Courts as well as this Court whether an order passed under Section 311 of the Code is interlocutory in nature or not. Therefore, what is necessitated at this juncture is the very definition of ‘interlocutory orders’.

6. It needs to be kept in mind as one of the very purposes of amendment and bringing about The Code of Cri














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