# Vinod Agarwal &Anr v. State of U.P. &Anr

- **Citation:** (2019) 1 ILRA 119
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-08
- **Case number:** CIVIL MISC. WRIT PETITION No.29111 of 2019
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-agarwal-anr-v-state-of-u-p-anr-44433
- **Pages:** 6

## Headnote

A. Section 313 Cr.P.C.- Examination of
Accused- application filed to recall the
P.W. 1 to cross examine as some
question left to be asked

Held:- Ground to recall P.W. -1 was not
mentioned in the application. It was rightly
observed
by
the
Trial
Court
that
the
proceedings of the instant complaint case is
pending since 2010 and witness has already
been examined in 2017, the application filed
by
the
applicant
is
to
delay
the
proceedings.(Para 15)

B.
Criminal
Revision
-
against
the
rejection
of
application
filed
under
Section 313 Cr.P.C. - not maintainablesummoning or refusing to summon the
witness under Section 311 Cr.P.C. is an
interlocutory order within the meaning
of Section 379(2) Cr.P.C. - dismissed

The Court relied upon the distinction drawn by
the Apex Court between interlocutory and
intermediary order, the former does not affect
any
existing
rights
finally
or
to
the
disadvantage of either extremes while an
intermediate order can touch upon the rights
of the parties. Since the reason for recalling
the witness for cross-examination does not
affect the right of the applicant therefore
application under Section 311 of Cr.P.C. is an
interlocutory order and no revision against
such order is maintainable in view of the bar
under Section 397(2) Cr.P.C.

Chronological list of Cases Cited:

## Text

1 All. Vinod Agarwal & Anr. Vs. State of U.P. & Anr.
119
case of the applicant that on the report
submitted under section 173 in the F.I.R.
lodged by the victim, cognizance had
already been taken prior to taking
cognizance and passing of the impugned
summoning order.

11. What flows from section 210,
Cr.P.C. is that right of a complainant to
agitate the matter through a complaint
cannot be taken away by filing of a charge
sheet by the investigating officer under a
different section of law. And the right of
the Magistrate to summon the accused
under some other sections in the complaint
than under which the accused has been
chargesheeted is fully secured by the Code
of Criminal Procedure and at the same
time protecting the accused also from
parallel proceedings in regard to the same
offence, by making the provision in sub
section (2) that the Magistrate shall try
together the complaint case and the case
arising out of the police report as if both
the cases were instituted on a police report.

12. Perusal of the order of the court
below dated 18.12.2018 in the ordersheet
of the complaint case appended as
annexure-8, shows that record of the
matter arising out of the FIR lodged had
been directed to be summoned by the trial
court.

13. In view of the above, the
submission of the learned counsel that
applicant is being subjected to two
different proceedings in regard to the
same offence, has no substance.

14. As regards the submission
regarding different age of the victim as
given in the complaint & F.I.R. as well as
change in the version of incident, is
concerned, suffice it to say these aspects
are to be determined during trial on the
basis of the evidence of the parties and
not at this stage.

15. As a result of above discussion,
there appears to be no illegality or
infirmity in the order impugned and the
prayer to quash the impugned summoning
order and the proceedings, is refused.

16. The present petition stands
disposed of, leaving it open for the
applicant
to
make
application
for
discharge on the grounds available to him
within three weeks from today. In case
any such application is moved, the same
shall be considered and decided by the
court below in accordance with law
expeditiously preferably within a period
of three months from the date of its
presentation along with certified copy of
this order.

17. For the period of three months or
till the decision taken by the concerned
Magistrate on the aforesaid application
whichever is earlier, no coercive action
shall be taken against applicant in the
aforesaid proceedings.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2019

BEFORE
THE HON'BLE RAJIV JOSHI, J.

CIVIL MISC. WRIT PETITION No.29111 of 2019
(u/s -482 Cr. P.C.)

Vinod Agarwal &Anr. ...Applicants
Versus
State of U.P. &Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ajay Kumar Mishra, Sri Meraj Ahmad
Khan.
120 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A., Sri Krishna Dutt Tiwari
A. Section 313 Cr.P.C.- Examination of
Accused- application filed to recall the
P.W. 1 to cross examine as some
question left to be asked

Held:- Ground to recall P.W. -1 was not
mentioned in the application. It was rightly
observed
by
the
Trial
Court
that
the
proceedings of the instant complaint case is
pending since 2010 and witness has already
been examined in 2017, the application filed
by
the
applicant
is
to
delay
the
proceedings.(Para 15)

B.
Criminal
Revision
-
against
the
rejection
of
application
filed
under
Section 313 Cr.P.C. - not maintainablesummoning or refusing to summon the
witness under Section 311 Cr.P.C. is an
interlocutory order within the meaning
of Section 379(2) Cr.P.C. - dismissed

The Court relied upon the distinction drawn by
the Apex Court between interlocutory and
intermediary order, the former does not affect
any
existing
rights
finally
or
to
the
disadvantage of either extremes while an
intermediate order can touch upon the rights
of the parties. Since the reason for recalling
the witness for cross-examination does not
affect the right of the applicant therefore
application under Section 311 of Cr.P.C. is an
interlocutory order and no revision against
such order is maintainable in view of the bar
under Section 397(2) Cr.P.C.

Chronological list of Cases Cited:
1. 2011 (3) JIC 628 (All) (FB) Munna Singh @
Shivaji Singh & others Vs. State of U.P. and
Anr.

2. 2011 (75) ACC 388 Ajay Dixit Vs. State of
U.P. &Anr.

3. 2010 (71) AC 892 Ram Shankar Yadav Vs.
State of U.P.

4. Criminal Appeal No. 486-487 of 2019
Sethuraman Vs. Rajamanickam
5. 2013 Law Suit (SC) 520 Mohit @ Sonu and
anther Vs. State of U.P. and Anr. (E-10)
(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard Sri Meraj Ahmad Khan,
learned counsel for the applicants, Sri
Krishna Dutt Tiwari on behalf of the
opposite party no. 2 and learned A.G.A.
for the State.

2. The present application under
Section 482 Cr.P.C. has been filed for
quashing the impugned order dated
05.04.2019 passed by Presiding Officer,
Additional
Court,
Moradabad
in
Complaint Case No. 190 of 2015 (Vikas
Agarwal Vs. Vinod Kumar Agarwal) as
well as order dated 18.06.2019 passed by
Session Judge, Moradabad in Criminal
Revision No. 114 of 2019 (Vikas Agarwal
and another Vs. State of U.P.), under
Section 138 N.I. Act, Police Station Gal
Shaheed, District Moradabad.

3. It reflects from the record that the
complainant-opposite party no. 2 filed a
complaint on 28.10.2010 against the
applicants for dishonouring of cheque,
under section 138 of the Negotiable
Instrument Act, in which the accused
applicants were summoned vide order
dated 30.11.2010. After summoning of
the accused, his statement was recorded
on 28.08.2012 and the examination-inchief of the complainant was recorded on
17.01.2014.
The
witnesses
of
the
complainant were cross-examined on
05.12.2017 & 06.12.2017. Subsequently,
date was fixed for recording of the
statement of the accused applicants under
Section 313 Cr.P.C. but the accused did
not appear before the court concerned for
the purpose and sought adjournment of
the case on one pretext or the other.
1 All. Vinod Agarwal & Anr. Vs. State of U.P. & Anr.
121

4. Recently in the year 2019 itself, an
application (date of the application is not
mentioned) for recalling P.W.-1 was filed on
behalf of the accused applicants on the
ground that some important questions were
left to be asked while cross-examining the
said witness, hence the said witnesses be
recalled for further cross-examination. The
Magistrate after considering the objection
filed to the said application as well as the
materials available on record, has specifically
recorded a finding to the effect that the
applicants are delaying the matter since 2010
on one pretext or the other and it has not
been mentioned in the application as to what
important points/questions were left to be
asked from the P.W.-1 while crossexamining him.

5. It is further recorded by the Trial
Court that apart from the present case,
four other complaints for dishonouring of
the cheques between the parties, are
pending. The Magistrate has also recorded
that on the direction of this Court, the
advocate Mediator was appointed and on
agreement of both the parties, a settlement
was made but the said settlement has not
been adhered to with by the applicants
and accordingly the Magistrate rejected
the said application vide impugned order
dated 5.4.2019. The copy of the order of
this Court as well as the settlement have
not been annexed by the applicants
alongwith this application. The relevant
extract of the order of the Trial Court is
quoted hereunder:

i=koyh ds voyksdu ls ;g ckr Hkh
Li"V gS fd i=koyh esa ekuuh; mPp U;k;y; ds
fn'kk&fnusZ'k esa i{kdkjksa dh lgefr ls ,MoksdsV
ehfM;Vj Hkh fu;qDr fd;k x;k rFkk i{kdkjksa dh
lgefr ls ,d elkSnk rS;kj dj ekuuh; mPp
U;k;ky; ds le{k is'k fd;k x;k Fkk ysfdu mldk
Hkh vuqikyu foi{khx.k@vfHk;qDrx.k }kjk ugha fd;k
x;kA blds vyok ekeys dks 'kh?kz fuLrkj.k ds fy,
ekuuh; mPp U;k;ky; }kjk vknsf'kr fd;k x;k
ysfdu vfHk;qDr ds }kjk visf{kr lg;ksx u fd;s
tkus dh otg ls i=koyh dk fuLrkj.k ugh gks
ldk gS rFkk i=koyh ,d yEcs le; ls c;ku
varxZr /kkjk 313 n0iz0la0 esa fopkjk/khu gS blls Hkh
;g ckr Li"V gks tkrh gS fd budk mnns'; okn
dh dk;Zokgh dks fcyfEcr gh djuk gSA tgka rd
izkFkhZx.k@vfHk;qDrx.k dh vksj ls izLrqr dh x;h
mijksDr uthjksa dk iz'u gS rks muds rF; iz'uxr
ekeys ds rF;ksa ls fHkUu gS rFkk ifjoknh ls muds
fo}ku vf/koDrkx.k }kjk ifjokn okn ds rF;ksa dh
ckor foLrkjiwoZd ftjg dh tk pqdh gSA ,slh fLFkfr
esa ifjoknh dks izfrijh{kk ds fy, ryc fd;k tkuk
U;k;ksfpr ugh gksxkA vr% izkFkhZx.k@vfHk;qDrx.k
dh vksj ls fn;k x;k izkFkZuki= mijksDr fujLr
fd;k tkrk gSA i=koyh fnukad 16-04-2019 dks okLrs
c;ku varxZr /kkjk 313 n0iz0la0 is'k gksA

6. After rejection of the application
by the Magistrate, Revision No. 114 of
2019 was filed by the applicants against
the said order, which too was dismissed
by learned Sessions Judge vide impugned
order dated 18.6.2019 as not maintainable
on the ground that order summoning or
refusing to summon the witness under
section 311,Cr.P.C. is an interlocutory
order within the meaning of Section 397
(2) Cr.P.C.

7. The order passed by the
Magistrate rejecting the application under
Section 311 Cr.P.C. for recalling the
witnesses as well as the revisional order
are impugned in the present application.

8. Learned counsel for the applicants
submits that the revision has wrongly
been rejected by the Revisional Court as
the order rejecting the application 311
Cr.P.C. is not an interlocutory order but
the intermediary order against which the
revision is maintainable. In support of his
contention he has relied upon Full Bench
judgment of this Court in Case of Munna
Singh @ Shivaji Singh & others Vs.
States of U.P. another 2011 (3) JIC 628
122 INDIAN LAW REPORTS ALLAHABAD SERIES
(ALL) (FB). Placing reliance upon
paragraph 33 onwards of the said Full
Bench decision, submission of the learned
counsel is that an order passed under
Section 311 Cr.P.C. is an intermediary
order by which the right of the accused
applicants
have
been
affected
and
therefore the order is revisable.

9.On the other hand, learned counsel
for the opposite party no. 2 as well as
learned A.G.A. have placed reliance upon
the judgement of the Apex Court in Case
of Mohit @ Sonu and another Vs. State
of U.P. and another, 2013 Law Suit
(SC) 520, and submitted that the
application filed by the accused applicants
for recalling the witness under Section
311 Cr.P.C. is without any foundation and
even from the application it is apparent
that the important questions which
remained to be left for cross-examination
from PW-1, have not been mentioned
therein.

10. It is further contended by the
learned counsel for the opposite party that
the application under section 311,Cr.P.C.
has been moved by the accused applicants
only with a view to delay the trial and not
for any other purpose, specific findings
regarding
which
has
already
been
recorded by the Trial Court in the order
impugned.

11. Learned counsel for the
opposite parties further contended that
the
rejection
of
application
under
Section 311 Cr.P.C. is not a final order
but it is an interlocutory order and even
the said order cannot said to be an
intermediary order as no right of the
accused applicants have been affected
by the said order, even in the original
application, it is not stated that on what
grounds the applicants wanted to recall
the witnesses.

12. In support of his contention, the
learned counsel for the opposite party has
placed the reliance on judgement of this
Court in the cases of Ajay Dixit Vs. State
of U.P. & another 2011 (75) ACC 388 ,
Ram Shankar Yadav Vs. State of U.P.
2010 (71) ACC 892 and the judgement of
the Apex Court in Criminal Appeal No.
486-487
of
2009
Sethuraman
Vs.
Rajamanickam.

13. I have considered the rival
arguments so advanced by the learned
counsel for the parties and perused the
record.

14. In the application filed by the
accused applicants under Section 311
Cr.P.C. for recalling of P.W.-1, the
grounds
for
recall
have
not
been
mentioned. Only this much is mentioned
therein that some important questions
were left for cross-examination from the
said witness. As observed by the Trial
Court, the proceedings of the complaint
case for dishonouring of cheque is
pending since 2010 and the witnesses of
complainant have already been crossexamined in 2017 and since 2017 the
matter is pending for recording of
statement of the accused applicants under
Section 313 Cr.P.C. which have been
avoided by the accused applicants on one
pretext or the other. The relevant findings
in this regard as recorded by the
Magistrate have already been quoted
hereinabove.

15. So far as the question regarding
the maintainability of the revision is
concerned, it is stated that as per the
judgement cited by the counsel for the
1 All. Vinod Agarwal & Anr. Vs. State of U.P. & Anr.
123
applicants, the distinction between the
two, interlocutory and intermediary would
be that the former does not bring about
any consequence of moment and is an aid
in the performance of the final act. It does
not affect any existing rights finally or to
the disadvantage of either extremes. An
intermediate order can touch upon the
rights of the parties or be an order of
moment so as to affect any of the rival
parties by its operation. Such an order
affecting the rights of a person or tending
to militate against either of the parties
even at the subordinate stage can be
termed
as
an
intermediate
or
an
intermediary
order.
In
this
regard,
relevant paragraph nos. 33 and 40 of the
judgement of Full Bench decision in case
of Munna Singh (Supra), are reproduced
hereunder:

"33. The distinction between the
two,
interlocutory
and
intermediary
would be that the former does not bring
about any consequence of moment and is
an aid in the performance of the final Act.
It does not affect any existing rights
finally or to the disadvantage of either
extremes. An intermediate order can
touch upon the rights of the parties or be
an order of moment so as to affect any of
the rival parties by its operation. Such an
order affecting the rights of a person or
tending to militate against either of the
parties even at the subordinate stage can
be termed as an intermediate or an
intermediary order.

40. The difficulty again is that can
such a list of illustrations be catalogued so
as to confine the revisional jurisdiction in
relation to such intermediate orders. Our
obvious answer is in the light of what has
been said in the case of Mohan Lal's case
(supra) by the Apex Court that the
determination of such an issue as to whether
a revision would be maintainable or not
would in turn depend upon the nature of the
order and the circumstances in which it
came to be passed. Thus it would depend on
the facts and circumstances of each separate
individual case where the revising authority
will have to examine as to whether the
Magistrate has proceeded to exercise his
judicious
discretion
well
within
his
jurisdiction or has travelled beyond the
same, keeping in view the various shades of
litigation in such matters where the Apex
Court and this Court has held that an
intermediate order, which is not necessarily
an interlocutory order, could be subjected to
revision. An order not conclusive of the main
dispute between the parties, but conclusive of
the subordinate matters with which it deals is
not a purely interlocutory order even though
it may not finally adjudicate the main dispute
between the parties. In our opinion therefore,
a revision would not be barred under sub
Section (1) of Section 397 of the Code if the
orders
impugned
before
the
revising
authority fall within the tests indicated
hereinabove".

16. Similar view has also been taken
by the Apex Court as in decision relied
upon by the learned counsel for the
applicants and there can be no dispute
about it.

17. However, here in the present
case, the order impugned rejecting the
application under Section 311 Cr.P.C.
does not affect any right of the accused
persons as the applicants have failed to
make out any case or ground for recalling
the complainant witness P.W.-1. The
application filed by the accused applicant
appears to be totally incompetent as the
necessary ingredients for recalling the
witness under Section 311 Cr.P.C. are
missing therein. The said application has
124 INDIAN LAW REPORTS ALLAHABAD SERIES
been moved with oblique motive just to
delay the proceedings of the complaint
case as observed by the Magistrate in its
order while rejecting the application.

18. The Apex Court as well as this
Court in the cases mentioned above i.e.
Ajay Dikshit (Supra) has specifically
held
that
the
order
rejecting
the
application under Section 311 Cr.P.C. is
an interlocutory order and no revision
against the said order is maintainable, in
view of the bar under Section 397 (2)
Cr.P.C. In this regard, paragraph no. 4 of
the decision of the Apex Court in
Sethuraman case (supra) is relevant
which reads as under:

"4. Secondly, what was not
realized was that the order passed by the
Trial Court refusing to call the documents
and rejecting the application under
Section 311 Cr.P.C., were interlocutory
orders and as such, the revision against
those orders was clearly barred under
Section 397(2) Cr.P.C. The Trial Court,
in its common order, had clearly
mentioned that the cheque was admittedly
signed by the respondent/accused and the
only defence that was raised, was that his
signed cheques were lost and that the
appellant/complainant had falsely used
one such cheque. 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. Under such circumstances,
the learned Judge could not have
interfered in his revisional jurisdiction.
The impugned judgement is clearly
incorrect in law and would have to be set
aside. It is accordingly set aside. The
appeals are allowed."

19. Taking into consideration the
entire facts and circumstances of the case as
well as the law enunciated in the decisions
of the Apex Court and this Court as
indicated above coupled with the fact that
present complaint proceedings are pending
for the last more than nine years, in the
considered opinion of this Court, I do not
find any illegality or infirmity in the orders
impugned passed by the Revisional Court
and the Trial Court.

20. The application lacks merit and,
is accordingly, dismissed.
-------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAEE, J.

CIVIL MISC. WRIT PETITION No.3239 of 2005
(u/s -482 Cr. P.C.)

Tej Singh &Ors. ...Applicants
Versus
State of U.P&Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Mohd. Israr, Sri Amit, Sri Krishna
Kapoor.

Counsel for the Opposite Parties:
A.G.A.

A.
U.P.
Gangsters
and
Anti-Social
Activities (Prevention) Act, 1986 - A
single criminal case can be basis to
impose the Gangsters Act - object of the
offence or the motive behind it crucial -
nature of allegations is more relevant