Hari Charan Vs. the State - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. soni, j.facts1. this is a revision petition against the order of shri g.l. mittal, magistrate 1st class, dated 11-6-1951, made on an application under section 94, criminal p. c., filed by the petitioner as an accused in a case under section 408, 420, i. p. c., for the production of certain documents. on this application, the learned magistrate passed the following order:'heard, the learned counsel for the applicant and the p. s. i. there is no necessity for the prosecution to wait for the documents prayed for in the application. the prosecution shall proceed. these documents, if at all be needed in defence, they may be summoned. prosecution need not wait.'2. the proceedings are forwarded for revision on the following grounds:the learned counsel for the petitioner contends that under section 94, criminal p. c., the court should summon the documents asked for by the accused before the charge has been framed in a case and an application for production of documents under section 94 cannot be rejected, merely because the accused can make such an application under section 257, criminal p. c., after he has entered upon his defence. in support of his contention, he relies on the full bench authority reported in -- 'mohammad rahim v. emperor', air 1935 sind 13 (a). it was held in that case that there was nothing under section 94, criminal p. c., which restricted the use of the machinery provided therein to any particular stage of an investigation, enquiry, trial or other proceeding under the code and sections 94 and 257 are not antagonistic but interdependent.under section 94, an accused may at any stage apply to the court to call for the production of a document and is entitled to its production if he satisfies the court that such production is necessary or desirable for the purpose of such enquiry, trial or other proceeding. in the present case, the learned magistrate has not held that the production of the documents called for was not necessary or desirable for the purpose of the enquiry or trial. as urged by the learned counsel for the petitioner it is necessary that these documents should be produced in court in order to facilitate the cross-examination of the prosecution witnesses at this stage before the court considers the question of framing a charge against the accused.3. the petitioner had applied for the production of patiala hotel register alleged to contain entries relating to the stay of the petitioner in the said hotel from 15-2-1943 to 17-2-1948. these entries will be relevant for determination of the authenticity of the document (ex.: p. w. 4/a) which is dated 15-2-1948. similarly, the other documents mentioned in para. 10 of the application are relevant for the defence of the petitioner. some of these documents are in the possession of the registrar, joint stock companies, delhi, and others, in possession of the manager, lakshmi insurance company, delhi, and manager, saraswati insurance company, delhi. it cannot, therefore, be held that the application for calling these documents had been made for the purpose of vexation or delay or for defeating the ends of justice.4. the learned public prosecutor, on the other hand, has cited -- 'bijai raj v. state', air 1950 ajmer 25(2) (b) and -- 'vishambhar dayal v. emperor', air 1941 oudh 33 (c). it was held in the first case that it was not for a court of revision to interfere with the discretion exercised by the trial court in the matter of deciding which of the witnesses desired to be summoned by the prosecution were necessary witnesses. in the second case, it was held that the court was not bound to summon all the witnesses cited by an accused person under section 257, criminal p. c., and it has power to refuse to summon all the witnesses, on the ground, that the application was made for the purpose of vexation or delay or for defeating the ends of justice. these authorities, however, are distinguishable from the facts of the present case. in view of the authority cited on behalf of the petitioner i am of the opinion that under section 94, criminal p. c., the trial court should have called these documents or else should have recorded the reasons for not calling these documents at that stage. the learned magistrate could not refuse to call these documents, merely on the ground that these could be summoned in defence, if at all needed. accordingly, i submit the record of the case to the hon'ble high court with the recommendation that the order of the learned magistrate, dated 11-8-1951 may be set aside and he may be directed to summon these documents.order5. for reasons given by the additional sessions judge, the recommendation is accepted. the magistrate will summon the documents.