2015 (4) TMI 1320 - HC - Indian Laws

Dishonor of Cheque - maintainability of the Criminal Revision Application on the ground that impugned order passed by the Magistrate would be interlocutory in nature - HELD THAT - On consideration of the submissions, I am unable to persuade myself to hold that the impugned order would be in the nature of interlocutory order. It is trite that the term interlocutory order is not defined under the Cr.P.C. However, it is now well settled that an interlocutory order is not converse of a final order. In other words, every order, which is not final, would not necessarily be interlocutory in nature. There may be certain orders, which although not final, may still not be interlocutory. In my considered view, the impugned order would fall in the said category. This is because any order, which substantially or materially, affects/decides the rights of the parties, in relation to the material controversy in question, cannot be said to be interlocutory. The order, in which the witnesses are produced and examined, has to be regulated by the law and practice for the time being relating to Civil and Criminal Procedure respectively and in the absence of any such law, by the discretion of the Court. The impugned order can now be tested both on account of the proceedings being in the nature of civil proceedings and/or on the basis of Section 311 of Cr.P.C., under which the applications were purportedly filed by the respondent - thus, it can be seen that where a party himself wishes to appear as witness, he shall so appear before any other witness on his behalf is examined, unless the Court for the reasons to be recorded, permits him to appear as his own witness at a later stage. The impugned orders do not show any consideration in this regard. The net result is that it is open for the learned Magistrate to lay down his own procedure for disposal of an application under Section 12 or under sub-section 2 of Section 23 of the Act. However, the Magistrate, depending upon facts and circumstances of the case, would be guided by principles akin to or underlying the relevant provisions under the Evidence Act and other enactments, governing procedural aspects. The Revision Application is allowed.

Summary

Issues Involved:
1. Applicability of Section 311 of the Criminal Procedure Code (Cr.P.C.) in civil proceedings under the Protection of Women from Domestic Violence Act, 2005.
2. Whether the respondent can summon witnesses without first stepping into the witness box.
3. Nature of the impugned order-whether it is interlocutory or final.
4. Discretion of the Magistrate in laying down the procedure for disposal of applications under the Act.

Detailed Analysis:

1. Applicability of Section 311 of Cr.P.C.:
The petitioner argued that the respondent is not facing any trial and thus, Section 311 of Cr.P.C. was not applicable. The petitioner cited the Supreme Court decision in Rajaram Prasad Yadav Vs. State of Bihar, which emphasizes that Section 311 should be invoked to meet the ends of justice and must be exercised with care, caution, and circumspection. The respondent countered that the sons are material witnesses to elucidate the truth regarding allegations of domestic violence, making their examination necessary. The court noted that although Section 28(1) of the Act makes Cr.P.C. provisions applicable, Section 28(2) allows the Magistrate to devise his own procedure, provided it adheres to principles of fair play.

2. Summoning Witnesses Without Respondent Testifying First:
The petitioner contended that the respondent should not summon witnesses without first deposing himself. The Magistrate and Sessions Judge had previously rejected this argument. The court referred to Section 135 of the Indian Evidence Act, which provides discretion to the court in the order of witness examination. Additionally, Order XVIII, Rule 3A of the Civil Procedure Code mandates that a party wishing to appear as a witness should do so before other witnesses unless the court permits otherwise. The court found no consideration of these principles in the impugned orders, indicating a material irregularity.

3. Nature of the Impugned Order:
The respondent argued that the order summoning witnesses was interlocutory and thus not subject to revision. The court disagreed, stating that an order substantially affecting the rights of parties is not interlocutory. The court cited the Supreme Court's decision in Madhu Limaye Vs. State of Maharashtra, which clarified that not all non-final orders are interlocutory. The court concluded that the impugned order materially affects the rights of the parties and is, therefore, subject to revision.

4. Discretion of the Magistrate:
The court emphasized that while the Magistrate has discretion under Section 28(2) of the Act to lay down the procedure, this discretion must be exercised cautiously and with circumspection. The court highlighted that the ultimate objective is to ascertain the truth regarding allegations of domestic violence, which forms the basis for granting relief. The court found that the Magistrate's order lacked consideration of relevant legal principles and procedural fairness.

Conclusion:
The court allowed the revision application, setting aside the orders of the Sessions Judge and the Magistrate. It directed that the respondent could press for summoning the witnesses after deposing himself. If the respondent chooses not to testify, he must put it on record, allowing the Magistrate to reconsider the applications afresh. The parties were instructed to appear before the Magistrate on a specified date. The revision application was allowed with no order as to costs.