Criminal Appeal No 411 of 1976
Appeal by Special Leave from the Judgment and Order dated the 22nd April 1975 of the Delhi High Court in Crimi nal Revision No 258 of 1974
Frank Anthony and D Gobrudhan for the Appellant
RN Sachthey Not present for Respondent No 1
GS Vohra SK Gambhir and KL Taneja for Respondent No 2
The Judgment of the Court was delivered by SHINGHAL J
This appeal of Smt
Parmeshwari Devi by special leave arises from the judgment of the Delhi High Court dated April 22 1975 dismissing her application for revision of the order of the Additional Sessions Judge of Delhi dated August 29 1974 confirming the order of a Metropolitan Magistrate of Delhi dated August 8 1974
The facts giving rise to the appeal are quite simple and may be shortly stated
A complaint was filed by respondent NL Gupta on behalf of Smt
Patashi Devi for the commission of offences under sections 181 182 193 197 199 200 465 466 and 471 of the Indian Penal Code by Nand Kishore Ghanshyam Das and Sanwar Mal
It was alleged that Smt
Patashi Devi had one fifth share in the firm of Ms Gupta Electric and Machinery
Stores of which Smt
Parmeshwari Devi the present appellant Smt
Dropadi Devi and Madan Lal Gupta were the other partners
According to the complaint the business of the firm was mainly looked after by Smt
Parmeshwari Devi s husband Mohan Lal and accused No 1 who was here brother
Patashi Devi and two other partners retired from the business on April 1 1968 without settling the accounts
Patashi Devi asked Mohan Lal and accused No 1 who was her brother Smt
Patashi settling accounts
Accused No 2 filed an attested copy of a deed of dissolution alleged to be signed by Smt
Patashi Devi in the office of the Registrar of Firms on November 14 1968 along with an intimation of the dissolution of the firm which also purported to be signed by her
The complainant filed an application under section 94 of the Code of Criminal Procedure 1898 hereinafter referred to as the Code for a direction to the accused to file the original deed of dissolution
The accused however stated in the court that they were employees of the firm and the document was not in their possession
The complainant then made another application on March
28 1974 under section 94 with a prayer that Smt
Parmeshwan Devi may be directed to produce the document
The court made an order on March 28 1974 summoning Smt
Parmeshwan Devi with the document
She stated in her reply that she did not know anything about the document and that after her husband s death the com plainant had taken away all the records of the firm
She stated further that she was a Pardanashin  12 1458SCI76 162 lady living in Calcutta and need not be summoned in the court
The Metropolitan Magistrate thereupon made order dated August 8 1974 as follows In my view when a person is summoned to attend the Court it is desirable that such summoned person attends and made statement on oath that he is not in the possession of the documents summoned so that the court may take further steps to secure the production of the documents as envisaged us 96 Cr
PC Merely sending a reply through an Advt
that the document is not in his possession is not sufficient compliance of the order
The request of the Ld counsel for Parmeshwari Devi that a commission may be issued for recording the statement of Smt
Parmeshwari Devi cannot be granted as the case is already getting old and issuance of a commission would mean undesirable delay of the case
The counsel for Smt
Parmeshwari Devi Shri CL Mala is now requested to intimate Smt
Parmeshwari Devi forthwith to attend this court and produce the document if in her possession on 30th August 1974
The Ld counsel for Parmeshwari Devi has also stated that Smt
Parmeshwari Devi is prepared to file an affidavit even to say that she is not in the possession of the documents summoned but in my view this also does not serve the purpose as calling of Smt
Parmeshwari Devi in the court and recording her statement on an oath will give a chance to the court to put her a few questions for satisfying itself regarding the whereabouts of the document in question
 As has been stated Smt
Parmeshwari Devi s applications for revision of this order have been dismissed by the Additional Sessions Judge and the High Court and this is how she has come in appeal to this Court
It will be recalled that it was the complainant who made an application under section 94 of the Code stating that as the deed of dissolution of the partnership was essential for the trial of the case Smt
Parmeshwari Devi may be directed to produce it
Parmeshwari Devi was not a party to the case and no reason whatsoever was given in the application why the document was likely to be in her possession or power beyond stating that the accused had stated in their reply the earlier application under section 94 that they were employees of the firm and were not in possession of the document and she was the widow of the late Mohan Lal Gupta
The Magistrate therefore summoned her with the document by his order dated March 28 1974 which is not however the subject matter of controversy before us
The question is whether the subsequent order of the Magistrate dated August 8 1974 is according to law by which Smt
Parmeshwari Devi has been directed to attend the court so that if she made a statement on oath that she is not in possession of the document the court may get a chance to put her a few questions for satisfying itself regarding the whereabouts of the documents  163 Chapter VII of the Code deals inter alia with process to compel the production of documents
Sub section 1  of section 94 which deals with summons to produce any docu ment merely authorises the court to issue a summons to the person in whose possession or power such document is be lieved to be requiring him to attend and produce it or to produce it at the time and place stated in the summons According to sub section 2 a person required under the section merely to produce a document shall be deemed to have complied with the requisition if he causes such document  to be produced instead of attending person ally to produce the same
There is nothing in the chapter to provide that the person who appears in the court in pursuance of its summons under sub section 1 of section 94 thereby becomes a witness and can be examined and cross examined by the court although he has not been cited as a witness in the proceedings
Even if a person produces the document for which a summons has been issued to him section 139 of the Evidence Act clearly provides that he does not thereby become a witness by the mere fact that he produces it and he cannot be cross examined unless and until he is called as a witness
So when Smt
Parmesh wari Devi filed a reply to the application of the complain ant under section 94 of the Code stating that she did not know anything about the deed of dissolution and it was not in her possession the utmost that the Magistrate could do was to issue a search warrant under sub section 1  of section 96 if he had reason to believe that she will not or would not produce the document as required by the summons
It was also permissible for the Magistrate to order a search of Smt
Parmeshwari Devi s house under section 98 of the COde if it appeared to him that the requirements of that section had been fulfilled
But there is no provision in the Code under which the court could record her statement on oath on her inability to produce the document or put her a few questions for satisfying itself regarding the where abouts of the document
 In the facts and circumstances of the case no further action is in fact called for against the appellant
The Additional Sessions Judge and the High Court went wrong in taking a contrary view
It has been argued that the order of the Magistrate dated August 8 1974 was an interlocutory order and the power of revision conferred by sub section 1 of section 397 of the Code of Criminal Procedure 1974 could not be exercised in relation to it by virtue of sub section 2
The Code does not define an interlocutory order but it obviously is an intermediate order made during the prelimi nary stages of an enquiry or trial
The purpose of sub section 2 of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay
This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it
But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial and he will have no opportunity to challenge it after a final order is made affecting the parties concerned he cannot apply for its revision even if it is directed against him and adverse ly affects his rights
164 A somewhat similar argument came up for consideration before this Court in Mohan Lal Magan Lal Thacker vs State of Gujarat1
The controversy there centred round the meaning of article 1341 c of the Constitution and the Court examined the meaning of the words final and interlocuto ry
It was held that the meaning had to be considered separately in relation to the particular purpose for which it is required to be interpreted
No single test can be applied  to determine whether an order is final or interloc utory
Then it has been held by this Court in that case as follows  An interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals
It may thus be conclusive with reference to the stage at which it is made and it may also be conclusive as to a person who is not a party to the enquiry or trial against whom it is directed
As has been shown the order of the Magistrate dated August 8 1974 was not according to law and it adversely affected the appellant who was not a party to the enquiry or trial as it was solely directed against her
As is obvious she could have no opportunity to challenge it after the making of the final order and such a belated challenge would have been purposeless for it would have given her no relief
So in so far as the appellant is concerned the order of the Magistrate could not be said to be an interlocutory order and the revisional courts erred in raising the bar of sub section 2 of section 397 against it
We have gone through Dhola and others vs State2 and The Central Bank of India Ltd vs Gokal Chand3 cited by Mr Vohra
Dhota s case related to the grant of ball and Gokal Chand s case related to a right of appeal under sec tion 381 of the Delhi Rent Control Act against an order made inter partes
They cannot therefore avail the respond ent in this case
For the foregoing reasons the appeal is allowed and the impugned orders of the High Court dated April 22 1975 and of the Metropolitan Magistrate dated August 8 1974 are set aside
VPS Appeal al lowed
1  2 1975 Crl
LJ 1 1274


Summary:
Section 941 Cr PC 1898 which deals with summons to produce any document authorises the court to issue a sum mons to the person in whose possession or power such docu ment is believed to be requiring him to attend and produce it
or to produce it at the time and place stated in the summons
According to sub s2 a person required merely to produce a document shall be deemed to have complied with the requisition if he causes such document to be produced in stead of attending personally to produce it
In the present case during a criminal trial the complain ant flied art application under section 94 for a direction to the accused to produce a document
The accused stated that the document was not in their possession
The complainant then made another application under the section praying that the appellant may be directed to produce the document
The appellant was not a party to the case and no reason whatso ever was given by the complainant in the application why the document was likely to be in appellant s possession or power
The Magistrate then passed an order summoning the appellant with the document
The appellant in her reply professed ignorance of the document and stated that as she was a pardanashin lady she may not be sumoned to court
The Magistrate thereupon passed another order directing her to attend the Court so that if she made a statement on oath  that she was not in possession of the document the Court may get a chance to put her a few questions for satis fying itself regarding the whereabouts of the document
The appellant s revision petitions against the order to the District Court and High Court were dismissed
Allowing the appeal to this Court HELD 1 There is nothing in the Criminal
Procedure Code providing that the person who appears in Court in pursuance of a summons under section 941 becomes a witness and can be examined and cross examined even though he has not been cited as a witness
Section 139 Evidence Act also pro vides that if a person produces the document for which a summons has been issued to him he does not thereby become a witness and that he cannot be cross examined until he is called as a witness
All that the Magistrate could do was to issue search warrants under section 961 or section 98 if the requirements of those sections were satisfied
The Court could not therefore record the appellant s statement on oath on her inability to produce the document or put her a few questions for satisfying itself regarding its whereabouts
163C E 2 The order which was thus not according to law adversely affected the appellant who was not a party to the enquiry or trial
Obviously she could have no opportunity to challenge it at the end of the trial and such belated challenge would also be purposeless
Therefore the order could not be said to be an interlocutory order and the revisional courts erred in raising the bar of section 3973 Cr
PC 1974
164C D Mohan Lal Magan Lal Thacker vs State of Gujarat   followed