IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.157 of 2019 BETWEEN DADIBA KALI PUNDOLE @ DADIBA PUNDOLE, DIRECTOR, PUNDOLE ART GALLERY AND PUNDOLE’S AUCTION HOUSE, 369, DR. DADABHAI NAOROJI ROAD, MUMBAI – 400 001.
... PETITIONER (BY SMT. JAYNA KOTHARI, SENIOR ADVOCATE ALONG WITH SRI ROHAN KOTHARI, ADVOCATE) AND M/S. BID AND HAMMER AUCTIONEERS PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT:
No.11, WHITEFIELD MAIN ROAD, BANGALORE - 560 066.
REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR. T.N. RAGHU/ANKUSH DADHA/APOORVA DADHA.
... RESPONDENT (BY SRI C.K. NANDA KUMAR, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE AND REVISE THE IMPUGNED ORDER DATED 07.01.2019 (ANNEXURE-A) PASSED BY THE LEARNED I ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BANGALORE RURAL DISTRICT, BANGALORE IN C.C.No.6392/2015 SO AS TO DIRECT THE REGIONAL PASSPORT OFFICE, MUMBAI TO ISSUE THE PETITIONER A NEW PASSPORT FOR A PERIOD OF 10 YEARS AS PER PROVISIONS OF THE PASSPORTS ACT, 1967 READ WITH GOVERNMENT OF INDIA NOTIFICATION No.GSR 570(E) DATED 25.08.1993 READ WITH THE PASSPORT RULES.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.03.2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
ORDER This criminal revision petition is filed by the petitioner under Section 397 read with Section 401 Cr.P.C., being aggrieved by the order passed by the Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru in C.C.No.6392/2015 dated 07.01.2019 on IA filed by the petitioner herein.
2. Heard the arguments of the learned counsel for the petitioner and the respondent.
3. The brief facts of the case of the prosecution is that, the petitioner is accused No.4 before the trial Court in C.C.No.6392/2015 for the offences punishable under Sections 499 and 500 of IPC, where after taking the cognizance, the petitioner appeared before the Court as the accused. Later, the petitioner had obtained stay order from this Court by filing criminal petition for quashing the proceedings and in the meanwhile, the petitioner had filed an IA under Section 6(2)(F) of the Passport Act, 1967 (‘the Act’ for brevity) before the trial Court herein. The trial Court after hearing both the parties, allowed the IA and directed the petitioner to approach the Passport Authority for obtaining the fresh passport vide order dated 27.09.2017. Subsequently, the petitioner had obtained the passport and visited abroad and the said passport has been issued by the Passport Authority for one year and after expiry of the said passport, the accused No.4 - petitioner herein, filed an Interlocutory application before the trial Court for renewal of the passport. The same was dismissed by the trial Court on impugned order dated 07.01.2019. The same is challenged by the petitioner herein.
4. The learned counsel for the petitioner contended that the trial Court, while passing the order committed an error in holding that the said Court already passed a speaking order on 27.09.2017 and proceedings were stayed by the Hon’ble High Court and holding that there is no significant ground made out for allowing the application is not correct. As per notification of the Government, there is a relaxation of condition for issuing the passport and also renewing the passport as per Section 6(2)(F) of the Act. Hence, the petitioner is required to travel abroad for his professional work as an artist. Hence, prayed for allow the petition.
5. Per contra, learned counsel for the respondent - Passport Authority vehemently objected mainly on the ground that the order passed by the trial Court is on the Interlocutory application which amounts to Interlocutory order there is a bar under Section 397(2) Cr.P.C.
Therefore, the revision cannot be entertained before this Court. The relief for the petitioner is elsewhere and also contended that as per Section 6(2)(F) of the Act, the petitioner is not entitled for passport. Even otherwise, once the passport has been issued to the petitioner as per the provision of the Act, when criminal case is pending, the passport could be issued only for one year and for the purpose of renewal is permissible only when the petitioner not to travel abroad during the said one year. Therefore, even on the merits the petitioner is not entitled for the relief. Hence, prayed for dismissing the revision petition.
6. Having heard the arguments of both the learned counsel and perused the records.
7. It is an admitted fact that the petitioner was accused No.4 before the trial Court in C.C.No.6392/2015 on the complaint filed by the respondent, a cognizance also taken by the accused. The petitioner has challenged the same by filing the criminal petition under Section 482 of the Cr.P.C., and stay has been granted by this Court in criminal petition No.2343/2018. It is also an admitted fact that previously petitioner filed an application before the trial Court, which came to be allowed by the trial Court permitting the Passport Authority to issue Passport with two conditions that the accused shall not leave the country till disposal of the case and he shall appear before the Court on every date of hearing till disposal of the case.
8. Being aggrieved by the same, the petitioner has filed Criminal Revision Petition No.1010/2017, wherein this Court relaxed the condition that he shall not leave the country. However, an exemption also granted for the presence of the petitioner before the trial Court. Accordingly, the Passport Authority issued passport for the petitioner for one year as the criminal case was pending against the petitioner and no duration was assigned by the Court. It is also an admitted fact that the petitioner has traveled abroad within one year and the passport issued by the authority came to be expired. Therefore, the petitioner again filed an Interlocutory application before the trial Court for renewal of the passport. The said application came to be dismissed by the trial Court. Now it is under challenge.
9. Before going to the merits of the case, this Court required to consider whether the revision petition is maintainable or not as learned counsel for the respondent objected that the impugned order is Interlocutory order, where there is a bar under Section 397(2) of Cr.P.C. for entertaining the revision petition. In support of his contention, the learned counsel for the respondent relied upon the judgment of the Hon’ble Apex Court in the case of Girish Kumar Suneja Vs Central Bureau of Investigation reported in (2017)14 SCC 809.
10. Per contra, the learned counsel for the petitioner argued that the order under revision is not Interlocutory order. In support of her contention, the learned Senior Counsel relied upon the judgment of the Hon’ble Apex Court in the case of Amarnath and others Vs State of Haryana & Others reported in 1977 AIR 2185 and Mohit Alias Sonu and another Vs State of Uttar Pradesh and another reported in (2013)7 SCC 789 and in W.P.57756/2015 passed by this Court in the case of Mr.Sumedha R.Bhosekar Vs Union of India.
11. The Hon’ble Apex Court in Girish Kumar Suneja’s case clarified that what is the Interlocutory order, what is the intermediate order and what is the final order, which could be challenged before this Court under revision petition. Paragraph Nos.15 to 18 of the judgment reads as follows:
“15. While the text of sub-section(1) of Section 397 Cr.P.C. appears to confer very wide powers on the Court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub- section(2) thereof. There is a complete prohibition on a Court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a Court can exercise its revision jurisdiction?
16. There are three categories of orders that a Court can pass-final, intermediate and interlocutory. There is no doubt that in respect of a final order, a Court can exercise its revision jurisdiction- that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the Court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Court can exercise its revision jurisdiction since it is not an interlocutory order.
17. The concept of an intermediate order first found mention in Amar Nath Vs State of Haryana in which case the interpretation and impact of Section 397(2) Cr.P.C came up for consideration. This decision is important for two reasons. Firstly, it gives the historical reason for the enactment of Section 397(2) Cr.P.C and secondly, considering that historical background, it gives a justification for a restrictive meaning to Section 482 Cr.P.C.
18. As far as the historical background is concerned, it was pointed out that the Criminal Procedure Code of 1898 and the 1955 Amendment gave wide powers to the High Court to interfere with orders passed in criminal cases by the subordinate courts. These wide powers were restricted by the High Court and this Court, as matter of prudence and not as a matter of law, to an order that “suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse” (Amar Nath Case, SCC p.140, para 4). This led to the courts being flooded with cases challenging all kinds of orders and thereby delaying prosecution of a case to the detriment of an accused person.”
12. It was further held at Paragraph 21 of the judgment as follows:
“21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the two such intermediate orders immediately come to mind-an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.”
13. In view of the background of the principles laid down by the Hon’ble Apex Court and the principles laid down by the Hon’ble High Court of Karnataka, where such an order deciding the rights and liabilities of the parties in respect of the cases are not an interlocutory order, the Hon’ble Apex Court held that in summoning the accused cannot be considered as interlocutory order. In the case of Amar Nath and others Vs State of Haryana (Supra), the Hon’ble Apex Court held that in summoning the accused straight away by the Magistrate which affects the valuable rights of the person/accused had been taken away by the order without application of mind. Therefore, the right of the appellant was involved in the order which cannot be considered an interlocutory order. Keeping in view of the decision of the Hon’ble Apex Court looking into the facts and circumstances of the case herein, where the respondent has filed criminal case against the petitioner, wherein cognizance has been taken against the petitioner for the offences punishable under Sections 499 and 500 of IPC and which was pending before the Court, a stay has been granted by this Court in the criminal petition. Further, the proceedings have been stayed by this Court.
The petitioner being accused in the said case filed an application under Section 6(2)(F) of the Act for renewal of the passport. The expiry of the passport period which was granted by the same Court vide order dated 27.09.2017, the application filed by the petitioner seeking permission for renewal of the passport is pending against him, admittedly is an interlocutory application filed by the petitioner. The provisions of the Passport Act is independent application ought to have filed by way of miscellaneous petition by the petitioner. But, on the other hand, the renewal application filed by the petitioner before the trial Court shows as follows;
“Interlocutory application filed under Section 6(2)(F) of the Act read with Government of India notification No.G.S.R.No.570(E) dated 25.08.1993”.
Based upon that application, the trial Court passed an order permitting the Authority to issue passport. On perusal of the order and the application filed by the petitioner clearly shows that the rights of the petitioner in respect of the criminal proceedings could not be effected due to passing of the order as held by the Hon’ble Apex Court in the case of Girish Kumar Suneja (Supra) the order challenged under revision could not culminate the proceedings which amounts to final order or the order if passed in certain way, the proceedings would terminate. But, if the order passed is in another way, the proceedings would continue in order to bring under the category ‘intermediate order’. Therefore, in my opinion, the order under revision is neither a final order which has the effect of terminating the proceedings nor it has the effect of ‘intermediate order’. If it is allowed which would terminate the proceedings and if it is not allowed in another way continue the proceedings. Therefore, order under the category of interlocutory order neither terminate nor to continue and which ever in manner it affects the rights of the petitioner in respect of the case of the petitioner filed against him. Therefore, the order under revision is purely a interlocutory order which has nothing to do with the pending case and there is a bar under Section 397(2) of Cr.P.C., for entertaining the revision petition by this Court. When the application filed by the petitioner himself, is an interlocutory application, the application could have been filed independently by way of miscellaneous petition before the trial Court and while passing the order, the said proceedings could be culminated by the order where a revision can be entertained. But, this is an IA filed by the petitioner in the pending proceedings, which is nothing but an interlocutory application and order is interlocutory in nature. The application has nothing to do with the pending case and it is an independent interlocutory application. Therefore, the revision is not maintainable.
14. In view of my findings that the petition is not maintainable as the order under challenge is an interlocutory order, this Court need not give any findings on the merits of the case and need not required to consider the case on merits when the criminal case filed against the petitioner in C.C. No.6392/2014 has already been stayed by this Court in Crl.P.No.2343/2018. As such, there is no criminal case pending against the petitioner. Therefore, there is no legal embargo for the petitioner to approach the Passport Authority for getting the passport or renewal of the Passport and his presence is not required before the trial Court at present.
15. With the above observations and in view of non- maintainability of the revision petition, the same is liable to be dismissed on the ground of maintainability. Hence, I proceed to pass the following;
Order Criminal Revision Petition is dismissed as not maintainable under Section 397(2) of Cr.P.C.
Sd/- JUDGE ssb