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TMI Blog2019 (10) TMI 1579X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order to the Ld. Sessions Judge. Ld. Addl. Sessions Judge has, therefore, wrongly entertained the revision petition and stayed the proceedings of the criminal complaint. The order dated 25.09.2019 passed by the Ld. Addl. Sessions Judge, is therefore, set aside and proceedings pending before the Ld. Addl. Sessions Judge are quashed being not in accordance with law. Petition disposed off. - BRIJESH SETHI, J. For the Appellant : Nitya Ramakrishnan, Siddharth Aggarwal, Adit S. Pujari, Tusharika Mattoo, Jahnvi, Chaitanya Sundriyal, Archit, Sneha, Abhinav Sekhri, Surabhi Dhar and Nikita, Advocates For the Respondent : Rahul Mehra, Standing Counsel, Jamal Akhtar, Chaitanya Gosain, Amanpreet Singh, Mudit Jain, Deepanshu Choithani, Shailesh Pandey, Yugany Sharma and Hardik Sharma, Advocates JUDGMENT BRIJESH SETHI, J. 1. The present petition under Article 226 of the Constitution of India read with Sec. 482 CrPC seeking a Writ in the nature of certiorari to set aside the ex-parte order dated 25.09.2019 passed by the Ld. ASJ, New Delhi, Patiala House Courts in Criminal Revision No. 506/2019 pending before the Ld. MM, Patiala House Courts. 2. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dedicated an entire segment of approximately 7 minutes and 50 seconds of the primetime show, DNA, on Zee News, personally attacking the petitioner and passing defamatory comments about both her personal and professional capacity. He accused the complainant of plagiarizing her speech delivered in Parliament from an Article authored by Mr. Martin Longman that had appeared on an American Website, Washington Monthly, on 31.01.2017 titled, 12 Signs of Fascism. and he referred to this article as the source from which the complainant allegedly copied her speech. The link to the broadcast of the respondent no. 2 was then shared on the Facebook, Youtube, and Twitter accounts of Zew News and the official website of Zee News. 7. It is further submitted by Ld. Counsel for the petitioner that following the broadcast by the respondent no. 2 fraught with false and defamatory allegations, the petitioner issued a statement on her Twitter Account by which she explained that she had clearly attributed her source for the signs of fascism in her speech itself. Mr. Martin Longman, from whom the petitioner as per the respondent no. 2 had allegedly plagiarized her speech, also stated in a post on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for dismissal of complaint on the ground of fraud on court . The Ld. MM listed the application for consideration on 03.09.2019 and on the same day, the counsel for the petitioner concluded arguments on summoning including on the aspect of inquiry under Section 202 of the CrPC, pre-summoning evidence was closed and the Ld. MM listed the main case for clarifications/appropriate orders on 07.09.2019 at 4 PM. 11. It is further submitted by Ld. Counsel for the petitioner that on 23.08.2019, the application filed by the respondent under Section 340 CrPC was adjourned for 03.09.2019 and on 03.09.2019, the applications filed by the respondent under Section 340 CrPC and application for dismissal of complaint was adjourned for 11.09.2019 owing to the Ld. MM being on leave. On 07.09.2019, the main complaint case of petitioner was adjourned for 03.10.2019 owing to the Ld. MM being on leave. On 11.09.2019, the applications filed by the respondent under Section 340 CrPC and application for dismissal of complaint was adjourned for 17.09.2019 owing to the Ld. MM being on leave. On 17.09.2019 also the applications filed by the respondent under Section 340 CrPC and application for dismissal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal order. It is further submitted by Ld. Counsel for the petitioner that it is established law that the accused has no right of hearing before the issuance of process against him and an application under Section 340 CrPC filed by the accused before the issuance of summons would not be maintainable and application under Section 340 CrPC must be considered at the conclusion of a trial and cannot stall proceedings of a trial. He further submitted that applications under Section 340 CrPC should be acted on sparingly and should not be allowed to be used as tools of vendetta or revenge. 15. It is further submitted by Ld. Counsel for the petitioner that the order of the Ld. ASJ violates the specific bar under Section 397(2) as per which no revision is maintainable against an interlocutory order. Therefore, the order dated 01.08.2019 is an interlocutory order and no revision at all was maintainable against the same, leave alone grant of ex-parte stay. Ld. Counsel further submitted that Ld. ASJ ought to have dismissed the Criminal Revision petition of the respondent considering the settled law that a prospective accused does not have any right to challenge an order passed by the Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Punjab Ors., (1976) 2 SCC 868; iv) General Manager, Electrical Rengall Hydro Electric Project, Orissa v. Giridhar Sahu Ors., 2019 SCC Online SC 117; v) Chandra Deo Singh v. Prokash Chandra (1964) 1 SCR 639; vi) Nagawaa v. V.S. Konjalgi (1976) 3 SCC 736; vii) Chitra Narain v. NDTV Ors. 2004(72) DRJ 547; viii) Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517, ix) Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338 x) Meenakshi Jain v. State and Ors., 194 (2012) DLT 745; 21. On the other hand, Ld. Counsel for the respondent has submitted that present writ petition is not maintainable for the reason that an equal efficacious remedy is available to the petitioner. He has relied upon the judgment of Hon'ble Supreme Court titled Radhey Shyam Anr. v. Chhabi Nath Ors., 2015 (3) SCALE, in which it was held that an order of Civil Court was not amenable to writ jurisdiction under Article 226 of the Constitution of India. He has further relied upon another judgment of Hon'ble High Court titled Union of India v. Mr. Haresh V. Milani and anr., C.A. No. 2939/2017 in Writ Petition No. 14039/2017 , in which it was held that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the accused may have can only be enquired into at the trial. An enquiry under s. 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry (Emphasis Supplied). Perusal of the above judgment reveals that Hon'ble Supreme Court has categorically held that permitting an accused to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision to this effect. 24. In another case titled Nagawaa v. V. S. Konjalgi (1976) 3 SCC 736 the Hon'ble Supreme Court has categorically held that at the stage of Section 202 or Section 204 of the CrPC, the prospective accused has no locus standi and the Magistrate has no jurisdiction to look into any material or evidence which may be produced by the prospective accused. 25. Similarly in Chitra Narain v. NDTV Ors. 2004(72) DRJ 547 Division Bench of this High Court has held that at the pre sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prospective accused cannot stall the proceedings in the complaint case. The Ld. MM has not decided the application. Perusal of the record reveals that Ld. MM has passed the following order on 01.08.2019; C.C. No. 9397/19 Mahua Moitra vs. Sudhir Choudhary 01.08.2019 Present: Advocate Sh. Shadan Farasat, Ld. counsel for complainant. CW Varun Maithu Thomas in person. Advocate Sh. Vijay Aggarwal, Ld. counsel for applicant of application u/s. 340 Cr.PC. Today the matter is listed for further pre summoning evidence. However, an application u/s. 340 Cr.PC had been filed by the applicant/prospective accused and part detailed arguments on the maintainability of the said application has been heard today. Further, arguments on the said aspect is deferred at request of Ld. counsel for applicant as he submitted that another matter is pending before the Ld. ACMM, Rouse Avenue at 02.00 PM today. Hence, at request, let further arguments on the said aspect be addressed on 23.08.2019. At this stage, Ld. counsel for complainant submitted that the complainant witness is present today and his PSE be recorded. It is 02.15 pm now complainant has also appeared. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the arguing counsel was not available. The case was further listed for 03.09.2019, 07.09.2019, 11.09.2019 and 17.09.2019 when the Ld. MM was on leave. On 25.09.2019, the Ld. MM has passed the following order; C.C. No. 9397/19 Mahua Moitra vs. Sudhir Choudhary 25.09.2019 Present: Complainant Absent. Sh. Shadan Farasat, Ld. Counsel for Complainant. Sh. Vijay Aggarwal, Ld. Counsel for Prospective accused. Matter is listed or reply/arguments on the application filed on behalf of prospective accused seeking necessary order and direction for dismissal of the complainant on the ground of fraud on the Court. Ld. Counsel for complainant submits that he shall not be filing a reply to the abovesaid application and straightaway address arguments. Ld. Counsel for prospective accused submits that the proceedings of the present case have been directed to be stayed by the Ld. Sessions Court today itself and a copy of the said order shall be placed on record. Heard. In view of submissions, matter is adjourned for further directions, if any, from Ld. Sessions/arguments on pending applications moved on behalf of prospective accused/order on summoning on 04.11.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasis supplied). 35. In another judgment titled Amarnath and Ors. Vs. State of Haryana and Anr., (1977) 4 SCC 137 , the Hon'ble Supreme Court has also defined interlocutory order and relevant para is as under; (3) The term interlocutory order in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad and artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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