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TMI Blog2015 (4) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Criminal Revision Application No. 23 of 2015 - - - Dated:- 10-4-2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al witnesses. It was claimed that the sons Scott Leclerc and Brett Leclerc are material witnesses in respect of the enquiry. Scott Leclerc is said to be a minor while Brett Leclerc has attained majority. It was, therefore, prayed that a direction be issued to the petitioner to produce Scott Leclerc before the Court and for issuing a witness summons to Brett Leclerc. 6. The petitioner filed a reply to the applications, opposing the same. It was contended that the applications and the prayers are in the nature of abuse of the process of the Court. It was also contended that the respondent is not an accused and as such, cannot claim the benefit of the provisions of Section 311 of Cr.P.C. It was denied that the two sons are material witnesses. It is contended that the respondent is using blackmailing tactics to pressurise and traumatise the minor sons. It was also contended that, the minor son Scott Leclerc was due to leave Goa on 22/23-08/2014 to proceed abroad and the respondent for his oblique purpose, cancelled the said trip, stating to the Airlines that his son Scott Leclerc was wanted in a criminal case. 7. It was contended that the respondent has not yet stepped into witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Hon'ble Supreme Court in the case of Rajaram Prasad Yadav Vs. State of Bihar, reported in AIR 2013 SC (Cri.) 1746. It is submitted that the respondent, without himself entering into the witness box, cannot justifiably pray for calling the two sons as witnesses, on a specious ground that they are material witnesses. It is submitted that the applications exhibits D-55 and D-56 are too cryptic to make out any case about the two sons being material witnesses, so as to elucidate the truth. He, therefore, submitted that order passed by the learned Magistrate clearly demonstrates exercise of jurisdiction with material irregularity, which needs interference. 12. On the contrary, it is submitted by Shri Rao, the learned Counsel for the respondent that in view of the case set up by the petitioner, about there being acts of assault by the respondent against the two sons in public place and also certain acts, which are attributed to the respondent in respect of the incidents, which have allegedly occurred in the presence of two sons, they would be witnesses, who may elucidate the truth. The learned Counsel was at pains to point out that the whole purpose of the enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the impugned order passed by the Magistrate would be interlocutory in nature. 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. Orders, which are purely incidental, for example, such as granting or refusing adjournment or which are in the nature of steps in aid, can be termed as interlocutory, so as to bar the revisional jurisdiction. A useful reference, in this behalf, may be made to the illustrated decision of the Hon'ble Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28 of the Act declares that this will not be in derogation of the powers of the Magistrate to evolve his own procedure. A conjoint reading of sub-sections (1) and (2) of Section 28 of the Act would indicate that although the enquiry is to be governed by the provisions as contained in Cr.P.C., the Magistrate is allowed certain free play in devising his own procedure. It would be necessary to state that such a procedure cannot be in derogation of the basic principles of fair play. It would be pertinent to note that although Section 28(2) of the Act has diluted the rigour of strict procedure being applicable, the Court, in appropriate case, would be guided by the principles akin to the one contained in the evidence Act and any other procedural law as may be applicable, in devising its own procedure. The enabling provision and the discretion conferred under Section 28(2) of the Act has to be exercised cautiously and with great circumspection. It is trite that wider the discretion, greater would be the circumspection required. This is not to whittle down the discretion conferred on the Magistrate in any manner. It would depend on facts and circumstances of each case. The ultimate objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would also be equally material witness, in the matter, in refuting the allegations regarding indulgence into acts of domestic violence. During the course of arguments at the bar, it is not claimed that the respondent does not wish to examine himself. In that view of the matter, the absence of any consideration on principles akin to Order XVIII, Rule 3A (assuming that the proceedings are predominantly of civil nature), would be material. 21. This takes me to the provisions of Section 311 of Cr.P.C. As noticed earlier, the learned Magistrate has found that the proceedings are of civil nature and as such, it does not appear that the learned Magistrate has called into aid the provisions of Section 311 of Cr.P.C., being the source of power for passing the impugned order. Be that as it may, the scope and ambit of the powers of a Criminal Court under Section 311 of Cr.P.C. fell for consideration of the Hon'ble Apex Court in Rajaram Prasad Yadav (supra). After taking a survey of the various decisions holding the field, it has been inter alia held that the object underlying Section 311 of Cr.P.C. is that there may not be failure of justice on the ground of mistake of either party in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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