1. The present revision petition has been preferred by the revisionist under Section 438 read with Section 440 of BNSS, 2023 against the order dated 18.07.2024 (herein after referred to as the 'Impugned Order') passed by Ld. Chief Judicial Magistrate, West District, Tis Hazari Courts, Delhi (herein after referred to as the 'Ld. Trial Court') in case Crl. Case No. 68896/2016 titled as State Vs. Sahab Singh whereby application of the revisionist/IO seeking his examination for recording of his evidence was dismissed.

Arguments addressed on behalf of revisionist

2. Assailing the impugned order, Ld. Counsel for the revisionists submitted that the impugned order is illegal, unwarranted and passed against the natural justice; that Ld. Trial Court failed to appreciate that the revisionist is IO/Police Officer and his non appearance before the Court on 18.07.2022 was neither intentional nor deliberate but due to his presence required before the Hon'ble High Court of Delhi; that Ld. Trial Court failed to appreciate the contents of the exemption application sent by the revisionist/IO and closed prosecution evidence on behalf of State after declining the request of Ld. Prosecutor.

3. To substantiate her arguments, Ld. Counsel for the revisionist has placed reliance upon following judgments :

Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 3 of 16 b. Hon'ble High Court of Sikkim in Crl. Rev. No. 3/2004 titled as State of Sikkim Vs. Sri Thukchuk Lachungpa and Anr. , has observed that :

c. Hon'ble Supreme Court of India in case titled as U. T. Dadra & Haveli & Anr. Vs. Fatehsinh Mohansinh Chauhan reported in 2006 AIR SCW 4840, has observed that :

d. Hon'ble Supreme Court of India in case titled P. Sanjeeva Rao Vs. State of A.P. reported in AIR 2012 SUPREME COURT 2242, has observed that :

16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.

Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 6 of 16 e. Hon'ble Supreme Court of India in case titled as Natasha Singh Vs. CBI (State ) reported in 2013 (5) SCC 741, has observed that :

Arguments addressed on behalf of respondents No. 2 & 3

4. Per contra, Ld. for respondent No. 2 & 3 supporting the Impugned Order argued that there is no infirmity and illegality done by the Ld. Trial Court and has rightly dismissed the application of the revisionist/IO. He further submitted that sufficient opportunities were granted to the revisionist/IO, however, he failed to appear before the Ld. Trial Court concern for deposition. It has been vehemently argued by Ld. Counsel for the respondent No. 2 that the present revision petition is not maintainable as the order assailed by the revisionist is an interlocutory order.

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5. To substantiate his arguments, Ld. Counsel for the respondent No. 2 has placed reliance upon following judgments :

The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2) , revision was clearly not maintainable." b. Hon'ble Supreme Court of India in case titled as Neelam Mahajan & Anr. Vs. The Sate & Ors. reported in 2016 SCC OnLine Del 2281, has observed that :

6. On the very same issue i.e. interlocutory order, Ld. Counsel for respondent No. 3 has placed reliance upon following judgments rendered by Hon'ble Supreme Court of India.

a. Case titled as Madhu Limaye Vs. State of Maharashtra reported in (1977) 4 SCC 551; b. Case titled as Sethuraman (Supra); and c. Case titled as Situ Ramnath Shastri Vs. IFCI Factors Ltd. reported in 2022 SCC OnLine Del 2660, wherein it has been observed that :

13. It is trite law that an order passed under Section 311 Cr.P.C. is purely an interlocutory order and a revision against an interlocutory order is clearly barred under Section 397(2) Cr.P.C. Consequently, the revision petitions preferred before Ld. ASJ were not maintainable and thus, the present petitions filed against the final outcome of the said revision petitions are again not maintainable."

Relevant portion of the Impugned Order

7. The Court heard the arguments as advanced by Ld. Counsel for both the parties and have gone through the material available on record including the Trial Court Record.

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8. Before proceeding further, the Court finds it appropriate to discuss the relevant portion of the impugned order, whereby the Ld. Trial Court dismissed the application filed by the revisionist, which reads as under:

Relevant law

9. This Court is guided by the judgment rendered by the Hon'ble High Court of Delhi in Crl. Revision No. 419/2023 titled as Mohd Hasan @ Nanhe vs State , has observed as under :

9. Reliance can also be placed upon B.B. Lal Aggarwal vs. The State Govt of Delhi & Anr. (Crl . M.C. 953/2022, Judgment dated 04.04.2022) decided by the Coordinate Bench of this court, wherein, it was observed that no revision lies against an interlocutory order.

10. The intent of Section 311 Cr.P.C. is to empower the court to make a fair evaluation at every instance. The court has been entrusted with this authority so that justice be administered without being constrained by the specifics of the legislation. It makes no difference whether a witness has been cross-examined by the party seeking to recall them or whether all of the evidence has been closed or not. The question for the court is whether calling back such a witness and presenting evidence is necessary for a fair resolution of the case. This alone demonstrates how the preceding ruling on the application under Section 311 Cr.P.C. cannot be regarded as final. The court may permit a witness to be summoned if, at a later stage, it determines that recalling the witness was required for a just resolution of the matter.

11. It is trite law that an order passed under Section 311 Cr.P.C. is purely an interlocutory order and a Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 14 of 16 revision against an interlocutory order is clearly barred under Section 397(2) Cr.P.C. Therefore, the present revision petition filed against order dated 31.03.2023 passed by the Ld. ASJ dismissing the application under Section 311 Cr.P.C, is thus, not maintainable."

10. Even the case law filed on behalf of respondents are on the same point of law.

Analysis and Observation

11. Law is well settled as held in case Sethuraman (Supra) that order passed under Section 311 Cr.PC is an interlocutory order and no revision lies against the said order. Hence, the present revision petition is not maintainable against the impugned order.

12. Even otherwise, perusal of the record shows that ample opportunities were available with the revisionist/IO to approach the Court concerned, however, he failed to avail such opportunity and filed the application for his examination after two years i.e. on 18.07.2024, of closing of prosecution evidence on 18.07.2022. Therefore, there is no illegality or irregularity in the impugned order.

13. In view of aforesaid discussion, the present revision petition is hereby dismissed being not maintainable since it has been filed against an interlocutory order. Accordingly, present revision petition is disposed of.

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14. The Trial Court Record along with the copy of this order be sent back to the learned Trial Court.

15. The file of this revision petition be consigned to record room after due compliance.

Pronounced in the open Court on 28.01.2025 (Shefali Barnala Tandon) Additional Sessions Judge -05, (West) Tis Hazari Courts Delhi It is certified that this Order contains 16 pages and each page bears my signatures.

(Shefali Barnala Tandon) Additional Sessions Judge -05, (West) Tis Hazari Courts Delhi Criminal Revision No. 393/2024 Ved Prakash Vs. State (GNCT of Delhi) Page 16 of 16