Judgment:
ORDER
S.A. Naqvi, J.
1. This revision petition is directed against order dated 4-1-2006 passed in S.T. No. 330/2004 by Special Judge (Atrocities), Gwalior whereby an application under Section 311 of Cr.PC for recalling prosecution witness Anis (P.W. 8) for re-cross-examination has been rejected.
2. Petitioner Jagmohan is facing trial before Special Judge (Atrocir ties) under Sections 302 and 336 of IPC. Initially he was charged under Section 302 of IPC and trial was in progress. Statement of Anis (P.W. 8) was recorded on 23-8-05 and 24-8-005. On 24-8-2005 petitioner requested to learned Trial Court that he does not want that trial be conducted by his previous Counsel. Consequently, defence Counsel withdrew his power. Half an hour time was granted to petitioner for engaging another Counsel and Junior Advocate Shri Somveer Singh Yadav cross-examined this witness. Petitioner engaged to Shri A.K. Barua, Sr. Advocate and his Junior Counsel. He filed his power on 1-9-2005.
3. On 24-11-2005, learned Trial Court framed charge under Section 336 of IPC pertaining to injuries sustained by Anis (P.W. 8) during incident and he was called for re-cross-examination. On 4-1-2006 Anis was cross-examined by defence and his cross-examination was started regarding his injuries and circumstances of sustaining injuries. But, learned Trial Court denied the privilege and directed that only pertaining to injuries sustained by Anis defence is allowed to put question to witness. Learned defence Counsel filed an application for cross-examination of the witness on the other circumstances for sustaining injuries by Anis. This application has been rejected by trial vide impugned order dated 4-1-2006. Aggrieved by the impugned order petitioner preferred this revision petition.
4. It has been argued by learned Counsel for petitioner that impugned order is against principle of justice. It is constitutional right of accused to ask question regarding circumstances regarding sustaining injuries by witnesses. The facts of the case cannot be separated from each other because they arc interconnected. Impugned order is illegal and against proprietary and prayed to allow revision petition and set-aside the impugned order and allow this application to cross-examine witness Anis (P.W. 8).
5. Learned PP supported the impugned order and argued that impugned order is an interlocutory order. Revision petition is not maintainable against the impugned order. Alternatively it has been urged by learned PP that impugned order is illegal and prayed for dismissal of revision petition.
6. Heard both the parties at length and considered and perused the impugned order and documents filed by petitioner.
7. Learned Public Prosecutor placing reliance on 1982 Cri.LJ 646, S.K. Mahajan and etc. v. Municipality, Jammu and Ors. etc. 1995 (4) Crimes 145, Karam Singh v. Ram Singh and Ors. 1995(1) Crimes 471, Teekam Singh and Ors. v. IIIrd Addl. Sessions Judge and Anr., and 1985 C.Cr.J. Note 88, Rambhajan and Ors. v. State of M.P., argued that order passed under Section 311 of Cr.PC for recalling the witness for re-cross-examination is an interlocutory order and revision petition is not maintainable under Section 397(2) of Cr.PC.
8. Contrary to that, learned Counsel for the petitioner placing reliance on : 1980CriLJ690 , V.C. Shukla v. State through C.E.I., and 1999 SCC (Cri.) 393, Rajendra Kumar Sitaram Pandey and Ors. v. Uttam and Anr., argued that impugned order is not an interlocutory order, it is a final order and revision petition is maintainable against impugned order. On going through the citations relied by respondent-State it is clear that Rambhajan and Ors. v. State of M.P., (supra), is the only citation of M.P. High Court, in which it has been held that order passed under Section 311 of Cr.PC is an interlocutory order and revision petition is not maintainable against interlocutory order. No citation from any other High Court or of Supreme Court has been referred by learned Brother Judge (the then) in the citation. It has been simply observed that in my opinion no interference in the impugned order can be made at this stage. Firstly because they are interlocutory orders and consequently the Court had the jurisdiction to allow or reject the prayers as had been made under Section 311 of the Code. No reason has been assigned in the order or no provision of law has been discussed to hold that an order passed under Section 311 of Cr.PC is an interlocutory order. Other citations which were relied by learned Counsel for respondent-State are from Jammu and Kashmir High Court, Punjab and Haryana High Court and Allahabad High Court. In these citations also, provisions of law pertaining to interlocutory orders have not been discussed in detail and : 1980CriLJ690 , V.C. Shukla (supra), and 1999 SCC (Cri.) 393 (supra), have not been considered. In S.K. Mahajan's case (supra), while considering V.C. Shukla's case (supra), only it has been mentioned that (1948) 49 Cri.LJ 625, Kuppuswami was not accepted by Supreme Court.
9. It has been held by Hon'ble Apex Court in V.C. Shukla's case (supra), as under:
In order to construe the term 'interlocutory', it has to be construed in contradistinction to or in contrast with a final order. In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'.
An interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. An order framing of the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in Section 11(1) of the Act...
There is yet another aspect of the matter which has to be considered so far as this decision is concerned, to which we shall advert when we deal with the fast plank of the argument of the learned Counsel for the appellant. Suffice it to say at the moment that the case referred to also fully endorses the view taken by the Federal Court and the English decisions, viz., that an order is not a final but an interlocutory one if it does not determine or decide the rights of parties once for all. Thus, on a consideration of the authorities mentioned above, the following propositions emerge:
(1) that an order which does not determine the right of the parties but only one aspect of the suit or the trial is an interlocutory order.
(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order.
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi-final orders....
10. It has been held in Rajendra Kumar's case (supra), in Para 6 as under:
Para 6. 'Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under Sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amur Nath v. State of Haryana, this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra, a three-Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla v. State, this Court has held that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under Sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under Sub-section (2) of Section 397 of the Code.
11. In : 1977CriLJ1891 , Amar Nath and Ors. v. State of Haryana and Ors., it has been held by Hon'ble Apex Court as under:
The terra 'interlocutory order' in Section 397(2) has been 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 or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of .the trial cannot be said to be interlocutory order so as to be outside the purview of the revisibnal jurisdiction of the High Court.
12. Placing reliance on above-mentioned principle in the present case, I am of the view that impugned order rejecting the application under Section 311 of Cr.PC for recalling a prosecution witness for re-cross-examination is not an interlocutory order reason being is that an accused has right to cross-examine prosecution witness and refusal to cross-examine prosecution witness substantially affects the right of the accused and prejudices the accused. Impugned order affects the right of the defence at particular stage of the trial to cross-examine a witness. Impugned order decides rights and liabilities of the parties regarding examination and re-cross-examination of prosecution witness. The order is not merely of a purely interim or temporary nature because it decides or touches the important rights or the liabilities of the parties. In : 1968CriLJ876 , Mohan Lal Magan Lal Thacker v. State of Gujarat, the Hon'ble Apex Court pointed out that the finality of an order could not be judged by correlating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. In that case, this Court held that even though it was an interlocutory order, the order was a final order.
13. As per above discussion, citations relied by respondent are not of any assistance to respondent because aforementioned citations of Supreme Court have not been considered in these citations. On careful consideration of the authorities and analysis of the provisions of Sections 311 and 397 of Cr.PC, I am of the view that impugned order is not an interlocutory order, it is a final order regarding right to cross-examine and re-cross-examine of a witness by petitioner. So arguments advanced by learned Counsel for respondent is devoid of substance in this respect and is hereby rejected.
14. Learned Counsel for the petitioner relying upon 2004(I) MPWN Note 140, Uday Singh v. State of M.P., argued that important circumstance left in cross-examination of the prosecution witness and power should be exercised for just decision of the case. Contrary to that learned Counsel for respondent placing reliance on 2004(I) MPWN Note 128, Yashwant v. State of M.P., argued that discretion exercised by the Trial Court is just and proper and there is no necessity to recall Anis (P.W. 8) for re-cross-examination.
15. Initially Anis (P.W. 8) was examined on 23-8-05 and cross-examined by Shri A.K. Saxena, Advocate on the same day and his cross-examination was deferred and he was again cross-examined on 24-8-2005 by Shri A.K. Saxena, Advocate for accused Pinkipal. He was cross-examined by Pradeep Gupta, Advocate for accused Jeetu. But before 20-4-2006 none cross-examined to this witness on behalf of Jagmohan, which reveals that no effective cross-examination has been done on behalf of petitioner Jagmohan. On 4-1-2006 only Counsel Shri Shailendra Singh cross-examined (P.W. 8) Anis. After framing charge under Section 336 and during Anis's cross-examination, learned Counsel for the petitioner filed an application under Section 311 of Cr.PC, which has been rejected by Trial Court on the ground that on behalf of the petitioner other advocates have cross-examined this witness. So, he cannot be allowed to cross-examine this witness on series of events or incident. But it is clear from the perusal of (P.W. 8) Anis's deposition that neither Shri A.K. Saxena nor Shri Pradeep Gupta cross-examined this witness on behalf of Jagmohan, so it is not correct to say that he has already been cross-examined by other Counsel in respect of series of events or incident. Learned Counsel for petitioner submitted that he wants to cross-examine this witness only pertaining to injuries sustained by Anis and relevant circumstances regarding sustaining of injuries by Anis. As per above discussion, I am of the opinion that learned Trial Court committed material illegality in rejecting the application for re-cross-examination of (P.W. 8) Anis. Impugned order is not sustainable in the eye of law. Consequently, revision petition is allowed. Impugned order dated 4-1-2006 pertaining to rejection of application under Section 311 of Cr.PC is hereby set aside. Petitioner is permitted to cross-examine Anis (P.W. 8) pertaining to injuries sustained by Anis (P.W. 8) and relevant circumstances regarding injuries, but petitioner is not allowed to elaborate cross-examination on every point and series of events which are not related to the injuries of Anis (P.W. 8).
16. Revision petition is allowed as indicated above.