SANJAY Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, 'Cr.P.C.') challenges order dated 18-8-2004 passed by the learned Additional Sessions Judge, Faridabad rejecting an application filed by the accused-peti-tioners under Section 311, Cr.P.C. wherein prayer was made for recalling prosecutrix PW-3 Aarti and PW-4 Raj Pal whose statements have already been recorded. The basis for the prayer made before the learned Additional Sessions Judge was that the prosecutrix PW-3 Aarti as well as PW-4 Raj Pal have sent the affidavits to the learned Addi tional Sessions Judge stating that the earlier statements made by them were under threat of the police. The learned Additional Sessions Judge after considering rival contentions recorded its satisfaction that under Section 311, Cr.P.C. The Court is empowered to recall a witness for proper adjudication of the matter but the statement which is sought to be put to the witness for further cross-examination was not admissible in law. The learned Additional Sessions Judge was referred to Section 145 of the Evidence Act, 1872 (for brevity, the Act') to conclude that only a witness can be cross-examined with regard to what the witness has stated in the previous statement made by him in writing or reduced to writing. A subsequent statement made by a witness after giving the evidence is inadmissible. In support of the aforementioned view the Additional Sessions Judge placed reliance on a judgment of the Supreme Court in the case of State of Rajasthan v. Teja Ram, (1999) 3 SCC 507 : (1999 Cri LJ 2588) and held that one of the permitted modes of impeaching credit of witness is proof of formal statement which is inconsistent with any part of his testimony as indicated in Section 155(3) of the Act. The mode of using such formal statement for the purpose of contradicting the witness is prescribed in Section 145 of the Act. In other words, a statement made by a witness could be contradicted and during the course of cross-examination by confronting the witness with a statement made by him/her earlier in point of time. But the law does not permit the contradiction of such a witness by a statement made subsequently. On the basis of aforementioned rationale the learned Additional Sessions Judge has dismissed the application.

(2.) Mr. Vikas Kumar, learned counsel for the petitioners has urged that the order of learned Additional Sessions Judge suffers from a patent illegality because in similar circumstances Courts have upheld the order passed by Additional Sessions Judge for recalling a witness. The learned counsel has made reference to a judgment of Delhi High Court in the case of State (Delhi Admn.) v. Ramesh alias Ramesh Kumar, (1990) 1 Chand Cri C 444 (1990 Cri LJ (NOC) 119) and argued that the aforementioned view is supported by a judgment of the Supreme Court in the case of Mohd. Hussain Umar Kochra v. I. S. Dalipsinghji, AIR 1970 SC 45 : (1970 Cri LJ 9). He has placed reliance on a judgment of this Court in the case of Jeo Mirza v. State of Punjab, (1995) 3 Rec Cri R 26.

(3.) After hearing the learned counsel, I have reached at the conclusion that the instant petition is not maintainable as it is directed against an interlocutory order. Under Section 397(2) read with Section 401, there is a specific bar for exercise of revisional powers against an interlocutory order. The question whether a particular I order would fall within the expression in-I terlocutory order has been considered by the Supreme Court in numerous judgments. In this regard, a reference may be made to Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 : (2001 Cri LJ 4250); K. K. Patel v. State of Gujarat. (2000) 6 SCC 195 : (2000 Cri LJ 4592) and Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134 : (1999 Cri LJ 1620). According to the view taken by the Supreme Court, the term "Interlocutory order" is to be used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights of the liabilities of the parties. The aforementioned view has been expressed by the Supreme Court in the case of Amar Nath v. State of Haryana, (1977) 4 SCC 137 : (1977 Cri LJ 1891). At the same time, it has also been observed that it is not possible to make a catalogue of orders which may fall within the expression of interlocutory orders. The only test devised by the Supreme Court is to determine whether criminal proceedings as a whole would be culminated. If the aforementioned test is applied to the facts of the present case, then the order passed under Section 311 of the Code of would necessarily be an interlocutory order covered by Section 397(2) of the Code. The view that an order passed under Section 311 of the Code is an interlocutory order is supported by the judgment of Allahabad High Court in the case of Teekam Singh v. IIIrd Additional Sessions Judge, (1995) 1 Crimes 471.