SCOPE OF REVISION UNDER SEC.397 CRPC

THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR

Criminal Petition No. 4379 of 2010

20-05-2010

Sri T.Achamma

The State of A.P. & others

Counsel for Petitioner: Sri K.Ramamohan Mahadeva

Counsel for Respondent : Additional Public Prosecutor

:ORDER:

This Criminal Petition under Section 482 Cr.P.C. is filed by the petitioner seeking to quash the order in Crl.R.C.No.19 of 2009 dated 05.02.2010 passed by the III Additional Sessions Judge (FTC), Rajampet, Kadapa District, confirming the order passed by the Judicial First Class Magistrate, Rajampet, in Crl.M.P.No.643 of 2008 in C.C.No.40 of 2005 dated 28.01.2009.

2. Heard

3. The petitioner is the defacto complainant in C.C.No.40 of 2005. In the said Calendar Case, on 15.02.2006 charges were framed, summons were issued to LWs 1 to 4 and the case was posted to 17.03.2006. During the pendency of the proceedings A.3 died and case against him was abated. On 02.01.2008 LW.1 (petitioner herein) was present and at the request of the accused, the case was adjourned to 07.01.2008. On 07.01.2008 also the petitioner (LW1) was present and at her request the case was adjourned to 21.01.2008. On 21.01.2008 LWs 1 to 4 were absent. However, on 06.05.2008 LW.1 was present and again sought for an adjournment, but there was no representation on behalf of the prosecution since it was not APP day. Again the case was adjourned to 03.06.2008 and fresh summons were ordered to the witnesses with specific instructions to produce the witnesses on 30.06.2008. However, on that day, LWs 1 to 4 were absent and summons were not served on them. Observing that in spite of passing specific orders, the summons could not be served, the learned Magistrate closed the evidence of LWs 1 to 4 and issued fresh summons to LWs 5 to 10 and posted the case to 22.07.2008. On that day, the prosecution filed Crl.M.P.No.643 of 2008 praying to recall LWs 1 to 4 and examine them. The learned Magistrate observing that inspite of giving several opportunities, the prosecution failed to produce the witnesses, dismissed the petition. Aggrieved by the same, the matter was carried in revision by the Prosecution. However, the said petition was dismissed mainly on the ground that revision is not maintainable against interlocutory orders. Challenging the same, this petition has been filed.

4. It appears that LW.1 is the injured witness and LWs 3 to 4 are the eye witnesses. They being the material witnesses, if not examined by the prosecution, the very purpose of conducting trial against the accused will be defeated. It is settled law that Revisional Power cannot be exercised in relation to interlocutory orders in view of sub-section 2 of Section 397 of Code of Criminal Procedure. However, the term 'interlocutory order' in Section 397 (2) of the Code of Criminal Procedure appears to have been used in a restricted sense and not in a broad sense. Any order, which substantially affects the rights of the parties, cannot be treated as interlocutory order to bar a Revision. Therefore, the impugned order, which has the affect on the result of the case, cannot be treated as an interlocutory order. Moreover, the trial Courts shall not close the doors particularly at the time of trial and allow the parties to adduce evidence. Of course, it is the mistake of the prosecution in not serving summons on the material witnesses in spite of specific directions issued by the Magistrate. For not serving summons on witnesses, the learned Magistrate ought to have taken steps against concerned Police Officials and ought not to have closed the prosecution evidence.

5. By closing the prosecution evidence, great injustice would be done to the victims. Justice is not only to be done to the accused but also to the victims. In view of the same, I consider that the impugned order has to be set aside.

6. Accordingly, the impugned order is set aside and the criminal petition is allowed. Consequently, Crl.M.P.No.463 of 2008 stands allowed. The learned Magistrate shall fix a date and issue summons to LWs 1 to 4 with a specific direction to the Police to comply with these directions and serve the summons and to see that summons are served on LWs 1 to 4 and that they are produced before the learned Magistrate on the date fixed by him. He may also inform the superior Police Officers with regard to this order to see that summons are served on LWs 1 to 4.

7. Subject to above observation, the Criminal Petition is allowed.