Prosecution 276C – denial of exemption from personal appearance and issuance of NBW was Interlocutory order not amenable to revision
ABCAUS Case Law Citation:
ABCAUS 3288 (2020) (03) AC
Important case law relied upon by the parties:
K. K. Patel vs State of Gujarat, (2000) 6SCC 195
Neelam Mahajan vs The State
Virkaran Awasty vs State of NCT of Delhi
Girish Kumar Suneja vs CBI
In the instant case, criminal revision petitions in Sessions Court were filed by the appellant out of two complaint cases pending against the revisionist for offence u/s 276C(2) read with Section 278B of the Income Tax Act, 1961 (the Act) for two different assessment years.
By way of orders impugned in said revision petitions, the trial court of Additional Chief Metropolitan Magistrate (ACCM) had directed issuance of non bailable warrants against the revisionist after dismissing his applications for exemption from personal appearance for that day.
In the impugned orders, the trial court had observed that earlier also, personal exemption applications of revisionist were allowed and that the defence counsel was not agreeable to get the notice under Section 251 CrPC framed through him against the revisionist, which reflected malafide intention of the revisionist to delay the trial and that necessitated securing the presence of the revisionist by coercive process.
The revisionist contended that the impugned orders were not interlocutory orders because by dismissing the personal exemption applications, the issue before the court came to be concluded. It was also argued that the provision under Section 397(1) CrPC confers wide powers on the Court of Sessions in order to rectify the illegality, incorrectness and impropriety in any order passed by the magisterial court.
It was argued that the impugned orders to the extent of issuance of NBW violate rights of the revisionist, the revision petitions could not be held to be hit by the bar under Section 397(2) CrPC.
The Sessions Court noted that there was need to examine the maintainability of these revision petitions, which assail dismissal of applications of the revisionist for grant of personal exemption for that day and directed issuance of non bailable warrants against him.
The Sessions Court stated that Section 397(1) of CrPC confers on the High Court as well as Court of Sessions very wide powers to examine the legality, correctness and propriety of any order passed by any “inferior criminal court”. Sub section (2) of Section 397 CrPC operates as a check on the said vast revisional powers and the purpose of the said check is to curb delays in the decision of the criminal cases, in order to ensure fair and expeditious trial.
The Sessions Court pointed out that basically, a judicial order passed by a criminal court can be either final order or intermediate order or interlocutory order. So far as final order is concerned, there can be no difficulty in the sense that an order of acquittal or conviction is a final order. Thus, the issue was distinguishing between an interlocutory order and an intermediate order, which distinction is necessary in view of the statutory bar created by Section 397(2) CrPC, which curtails the revisional powers of the High Court and the Court of Sessions with respect to interlocutory orders.
It was noted that the Hon’ble Supreme Court had held that the feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code.
The Hon’ble Supreme Court in later cases the Hon’ble Supreme Court of India had elaborately discussed the law related to right to file revision petition under Section 397 CrPC and recapitulated the previous judicial precedents.
It was also noted that after detailed discussion the Delhi High Court held that an order directing issuance of non bailable warrants is an interlocutory order and therefore, criminal revision petition against that order is not maintainable in view of bar under Section 397(2) CrPC.
The Sessions Court opined that in the instant case, the test was as to whether setting aside the impugned orders would lead to termination of proceedings and if so, the impugned orders could not be held to be interlocutory orders
According to the Court, the impugned orders whereby applications of the revisionist for personal exemption for that day were dismissed and nonbailable warrants against him were ordered would not result in termination of proceedings. Therefore, the impugned orders were not intermediate orders but interlocutory orders, so the same were not amenable to revisional jurisdiction of the Sessions Court.
The Court opined that merely because by way of impugned orders the issue of personal exemption for that day sought by the revisionist came to be concluded, the impugned orders could not be held to be final orders or intermediate orders. The Delhi High Court had held that an interlocutory order would not cease to be interlocutory order merely because it disposes of an aspect in the course of proceedings even though adversely affecting a party for the time being and that an order passed under Section 311 CrPC is interlocutory in nature, so not amenable to revisional jurisdiction.
The Court also rejected the argument that issuance of non bailable warrants violates rights of the revisionist as rightly observed in the impugned order also, issuance of nonbailable warrants was only a coercive process in order to ensure presence of revisionist accused before the trial court, so that the trial proceeds in his presence.
Accordingly, the revision petitions were dismissed as not maintainable.
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