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2014 Supreme(Tri) 186
IN THE HIGH COURT OF TRIPURA
S. Talapatra, J.
Goutam Ghosh, Sri Uttam Ghosh and Smti. Mahua Ghosh - Appellant
Versus
State of Tripura - Respondent
Crl. Rev. P. No. 07 of 2014
Decided On : 27-05-2014
For the Appellant :Mr. S. Chakraborty, Advocate
For the Respondents: Mr. A. Ghosh, PP
The central legal point established in the judgment is the determination of interlocutory orders and the circumstances under which evidence can be taken in the absence of the accused under the provisions of the Criminal Procedure Code.
Headnote:
Interlocutory Order - Criminal Procedure Code - Section 397(2), Section 317 - The court discussed the nature of interlocutory orders and the powers of revision under Section 397(2) of the Cr.P.C. It referenced several cases to clarify the determination of interlocutory orders and the circumstances under which evidence can be taken in the absence of the accused under Section 317 of the Cr.P.C.
Fact of the Case:
The petitioners challenged orders rejecting adjournment requests and allowing examination of witnesses in their absence, citing a breach of Section 273 of the Cr.P.C.
Finding of the Court:
The court found that the orders were not illegal and that the accused and their counsel did not cross-examine the witnesses despite being present in court.
Issues: The main issue was whether the orders breached Section 273 of the Cr.P.C. and caused prejudice to the petitioners.
Ratio Decidendi: The court emphasized the purpose of the criminal court to administer justice and the need for progress in the trial. It also highlighted the circumstances under which the personal attendance of an accused can be dispensed with under Section 317 of the Cr.P.C.
Final Decision: The revision petition was rejected, but the accused persons were granted a single opportunity to cross-examine the witnesses upon proper application under Section 311 of the Cr.P.C. and on deposit of the cost of the witnesses for that purpose.
JUDGMENT
. Talapatra, J.:-By this revision petition an interlocutory order of Magistrate has been called in question. The nature of the order itself shows that an element of finality as regards the cross examination of the witnesses has been recorded by the Magistrate.
2. The interdict contained in Section 397(2) of the Cr.P.C. is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by the apex court through a series of decisions is that if the contention of the petitioner, who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole would culminate? If that would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage.
3. In Madhu Limaye v. State of Maharashtra reported in (1977) 4 SCC 551 the law has been further clarified as under:
An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).
4. Madhu Limaye (supra) has been affirmed by the four-Judge Bench of the apex court in V.C. Shukla v. State through CBI reported in 1980 Supp SCC 92, Rajendra Kumar Sitaram Pande v. Uttam reported in (1999) 3 SCC 134 and in K.K. Patel v. State of Gujarat reported in (2000) 6 SCC 195. In Madhu Limaye (supra) and V.C. Shukla (supra) the law on determining the nature of the order, interlocutory or not have been restated by the apex court.
5. By the impugned orders dated 28.10.2013, 29.10.2013, 30.10.2013 and 31.10.2013 delivered in PRC No. 965 of 2011 the Judicial Magistrate, 1st Class, Court No. 3, Agartala, West Tripura has examined the witnesses on rejecting the prayer of adjournment made by the petitioners.
6. It appears from the orders dated 28.10.2013 that a petition for adjournment was submitted along with a copy of the medical certificate but that petition was not pressed. Rather the learned counsel for the petitioners had pressed for leave of the court under Section 317 of the Cr.P.C. for representation of the accused persons by their engaged counsel in their absence. However, on that day the case was adjourned. On 29.10.2013, on the same ground a petition for adjournment supported by the medical certificate of illness of the petitioner namely Manoranjan Debnath was moved. But that was not allowed. On that day the Magistrate examined the witnesses but the defence counsel did not cross examine the witnesses and persistently pressed for adjournment. By the order dated 30.10.2013 again the adjournment was prayed but that was also not allowed by the Magistrate, rather he examined two witnesses who had turned up on receiving the summons from the court. The defence counsel did not cross examine the witnesses. On 31.10.2013 except the accused persons namely Manoranjan Debnath, other three accused persons were present before the court. The prayer for adjournment was rejected. Later on, two witnesses were examined in presence of the three accused persons namely Goutam Ghosh, Uttam Ghosh and Smti. Mahua Ghosh, but in absence of the accused Manoranjan Debnath, who was allowed to be represented by the defence counsel by the order dated 28.10.2013. All these orders are challenged by the petitioners in this petition on the ground that those orders have been passed in breach of Section 273 of the Cr.P.C. which stipulates that evidence is to be taken in presence of the accused. Section 273 of the Cr.P.C. provides that:
Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with in the presence of his pleader.
7. Mr. Chakraborty, learned counse
