Delhi District Court
Rehana vs State on 10 February, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-014305-2024
Criminal Revision No.: 363/2024
1. SMT. REHANA,
W/o. Abdul Qayyum.
2. ABDUL QAYYUM,
S/o. Shamuddin,
3. IBRAHIM ANSARI,
S/o. Shyamudin,
4. RUBI,
W/o. Ibrahim,
All R/o. 6834, Qila Qadam Sharif,
Nabi Karim, Paharganj,
New Delhi-110055. ... REVISIONISTS/
PETITIONERS
VERSUS
1. STATE,
PS Nabi Kari, Delhi-110055.
2. IRFAN,
R/o. 6834, 2nd Floor,
Qila Qadam Sharif,
Nabi Karim, Paharganj,
New Delhi-110055.
3. KAUSAR,
R/o. 6834, 2nd Floor,
Qila Qadam Sharif,
Nabi Karim, Paharganj,
New Delhi-110055.
4. HARUN,
R/o. 6834, 2nd Floor,
Qila Qadam Sharif,
Nabi Karim, Paharganj,
New Delhi-110055.
5. GHULAM MUSTAFA,
S/o. Islamu Haq,
R/o. 6889, First Floor,
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.02.10
17:12:22 +0530
Qila Qadam Sharif,
Nabi Karim, Paharganj,
New Delhi-110055.
6. REHMAT ULLAH,
R/o. 6889, First Floor,
Qila Qadam Sharif,
Nabi Karim, Paharganj,
New Delhi-110055. ... RESPONDENTS
Date of Institution : 11.09.2024
Date when judgment was reserved : 23.01.2025
Date when judgment is pronounced : 10.02.2025
JUDGMENT
1. The present revision petition has been filed under
Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as ‘BNSS’)/pari materia to Section 397 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
‘Cr.P.C.’), against the order dated 22.08.2024 (hereinafter referred
to as ‘impugned order’), passed by Ld. Judicial Magistrate First
Class-05/Ld. JMFC-05, Central, Tis Hazari Court ( hereinafter
referred to as the ‘Ld. JMFC/Ld. Trial Court’), in case titled as;
‘Smt. Rehana v. Irfan, Ct. Case No. 531395/2016’, being a
complaint case, initiated at the behest/by the revisionists herein
alleging commission of offences under Sections 451/323/509/34
of the Indian Penal Code, 1860 ( hereinafter referred to as ‘IPC‘),
by/on behalf of respondent nos. 2-6. Pertinently, by virtue of the
said order/impugned order the Ld. Trial Court, dismissed the
application moved on behalf of the revisionists, seeking
cancellation of bail granted to the accused in the complaint case,
i.e., respondent nos. 2-6, herein.
2. Tersely put, the genesis of the proceedings before the
Ld. Trial Court is that the revisionists filed a complaint against the
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.02.10
17:12:26
+0530
accused persons/respondent nos. 2-6 inter alia asserting that the
revisionists were in possession of Ground, First, Second and Third
Floors of H. No. 6834, Qila Qadam Sharif, Nabi Karim, Pahar
Ganj, New Delhi-110055 (hereinafter referred to as the ‘premise’).
It is further proclaimed under the complaint that the premise in
question was purchased from one Gulshan Kumar with the
understanding that the staircase and bathroom on ground floor
would be of revisionist no. 2 for their personal use. The
revisionists further asserted that the premise, ever since its
purchase was in the use/possession of the revisionist, including the
toilet/bathroom and staircase. However, there was disputes
between the revisionists and the accused persons/respondent nos.
2-6 for the use of said staircase and toilet/bathroom, against
various proceedings/civil suit proceedings were initiated by/at the
behest of the revisionists. Correspondingly, as per the revisionists
on 12.11.2015 at around 09:00 a.m., the accused
persons/respondent nos. 2-6 are proclaimed to have entered the
premise/house of the revisionists with bamboo and knife,
thereafter, commenced beating, manhandling, teasing and
throwing household articles on road, besides forcibly snatching the
purse of revisionist no. 1, containing a sum of Rs. 5,000/- (Rupees
Five Thousand only) and beating the revisionists. As per the
revisionist, a complaint against the said action of the accused
persons/respondent nos. 2-6 was lodged with the concerned police
station/police officials, however, to no avail. The revisionists
further asserted in their complaint that the accused
persons/respondent nos. 2-6 threatened the revisionists of dire
consequences, in case the said complaint was not withdrawn/taken
back. Further, as per the revisionists on 27.02.2016 at around
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.02.10
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05:00 p.m., the accused persons/respondent nos. 2-6 forcibly
entered the house of revisionists again, armed with knife and lathi
as well as attacked and beat them mercilessly. Ergo, the
revisionists are declared to have called the police at the spot and
the MLCs of the victims were got conducted. The revisionists have
further avowed under their complaint that the police again failed to
take suitable action on their complaint, yet a false kalandra under
Section 107/151 Cr.P.C. dated 27.02.2016 against revisionist nos.
2-3 was registered. Consequently, under such facts and
circumstances, the complaint along with an application under
Section 156(3) Cr.P.C., came to registered by/at the behest of the
revisionist before Ld. JMFC-05/Ld. Trial Court.
2.1. Notably, upon the complainants/revisionists
addressing their arguments on the aforesaid application as well as
on consideration of the action taken/status report filed by the
concerned police official(s), Ld. Trial Court vide its order dated
05.10.2016, dismissed the revisionists application under Section
156(3) Cr.P.C. Subsequently, upon pre-summoning evidence
being led by/on behalf of the revisionists and on hearing the
arguments, as well as upon perusal of the records, Ld. Trial Court
vide order dated 22.05.2019, took cognizance of the offences
under Sections 451, 323, 509, 34 IPC as well as directed issuance
of summons against the accused persons/respondent nos. 1-6 inter
alia under the following observations;
“…In view of the testimonies of witnesses
examined on oath prima facie offences U/s.
451/323/509/34 IPC made out. There are ground for
further proceeding against the accused persons.
Accordingly, respondents, as mentioned at serial no. 1
to 6 (respondent no. 7 expired as came in the
testimony of witnesses) be summoned for next date of
hearing, on the steps taken by the complainant within
7 days.
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Put up for further proceedings on 24.06.2019…”
(Emphasis supplied)
2.2. Markedly, subsequently, upon appearance of the
accused persons/respondent nos. 2-6 before the Ld. Trial Court,
the accused persons were admitted to bail vide orders dated
27.07.2019 and 09.09.2019, considering the offences/allegations
levelled against respondent nos. 2-6 were bailable in nature.
Notably, during the course of proceedings before the Ld. Trial
Court, revisionists moved an application seeking cancellation of
bail granted to the said accused persons/respondent nos. 2-6 vide
order dated 22.08.2024, the order impugned herein. Apposite for
the purpose(s) of present discourse to outrightly reproduce the
relevant extracts of the impugned order/order dated 22.08.2024, as
under;
“…At the outset, it is noticed that the application
has been moved u/s 439(2) of Cr.P.C. and the said
application legally is not maintainable before this
Court but before the Hon’ble High Court of Delhi/Ld.
Sessions Court. Even if it is assumed that the present
application is moved u/s 437(5) of Cr.P.C., the same is
also not maintainable because the offences alleged are
bailable in nature. Furthermore, Section 436(2) of
Cr.P.C. stipulates that the bail granted to the accused
can be cancelled even in bailable offences, if the
accused fails to comply with the conditions of bail
bonds as regards the time and place of attendance. No
such case is either argued before this Court nor the
record suggests so.
In view of all the above reasons, present
application seeking cancellation of bail stands
dismissed…”
(Emphasis supplied)
3. Learned Legal Aid Counsel for the revisionist
outrightly contended that the impugned order was passed by the
Ld. Trial Court without properly appreciating the facts of the
present case as well as wrongly applying the law. Further, as per
the Ld. Counsel, the impugned order is wrong and contrary to
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ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.02.10
17:12:42 +0530
settled law and has been passed by the Ld. Trial Court,
mechanically, without due application of mind to the factual and
legal position. As per the Ld. Legal Aid Counsel, the Ld. Trial
Court did not apply its mind while dismissing the application of
the revisionists seeking cancellation of bail of respondent nos. 2-6.
It was further submitted by the Ld. Legal Aid Counsel that the
impugned order is perverse and bad in law, as passed in haste,
without application of law as well as oblivious of the facts and
circumstances brought forth to the attention of the Ld. Trial Court.
In this regard, Ld. Legal Aid Counsel fervently asserted that the
allegations made by the revisionists are serious in nature and there
is a reasonable likelihood of commission of untoward incident by
respondent nos. 2-6 in future against the revisionists. Ld. Legal
Aid Counsel further contended that respondent nos. 2-6 are still
raising threats to the revisionists as well as the witnesses in the
instant case by indulging in similar offences. However, as per the
Ld. Legal Aid Counsel the said facts were not considered by the
Ld. Trial Court, while passing the impugned order. It was further
submitted that respondent nos. 2-6/accused persons are interfering
with the course of investigation and proceedings before the Ld.
Trial Court, which factor ought to have been considered by the Ld.
Trial Court, while passing the impugned order. Even otherwise, as
per the Ld. Counsel, the accused persons/respondent nos. 2-6 may
misuse and have been persistently misusing the liberty granted to
them by the Ld. Trial Court, by indulging in similar criminal
activities, directed towards the revisionists herein.
3.1. Learned Legal Aid Counsel further submitted that the
Ld. Trial Court did not look in to the evidence of commission of
injuries, which were committed by respondent nos. 2-6/accused
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.02.10
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persons, several times, by entering the revisionists’ house and
further failed to consider that the accused persons/respondent nos.
2-6 have become habitual offenders. Ergo, as per the Ld. Legal Aid
Counsel, the impugned order is arbitrary, biased and against the
facts and law, resulting in causing grave miscarriage of justice as
well as prejudice to the case of the revisionists. Ld. Legal Aid
Counsel further submitted that the Ld. Trial Court has sufficient
power to cancel bail of the accused persons/respondent nos. 2-6,
under the circumstances, as in the instant case, which were brought
to the notice of the Ld. Trial Court. In so far as the maintainability
of the present petition is concerned, Ld. Legal Aid Counsel
submitted that the impugned order, grossly affects the rights of the
revisionists and is amenable to the revisional jurisdiction of this
Court. As per the Ld. Legal Aid Counsel, the impugned order
determines a valuable right of the revisionists to seek cancellation
of bail of respondent nos. 2-6/accused persons on violation of the
terms granting bail to the said accused persons, making the
impugned order amenable to the revisional jurisdiction of this
Court. In support of the aforesaid contentions, reliance was further
placed on the decision in; Raghubir Singh Singh & Ors. v State of
Bihar, (1986) 4 SCC 481.
4. Per contra Ld. Addl. PP for the State contended that
the present petition is not maintainable in view of the bar
envisaged under Section 397(2) Cr.P.C./438(2) BNSS, the
impugned order being interlocutory in nature. As per the Ld. Addl.
PP for the State that no rights or liabilities have been adjudicated
by the Ld. JMFC-05/Ld. Trial Court under the impugned order and
merely an application seeking cancellation of bail granted to the
accused persons/respondent nos. 2-6 was dismissed by the Ld.
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ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.02.10
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Trial Court. As such, it was contended that the revision against the
said order would not lie/would not be maintainable, making the
present petition to be dismissed at the outset. Even otherwise, Ld.
Addl. PP for the State contended that there is no infirmity in the
impugned order, which was passed by the Ld. JMFC-05/Ld. Trial
Court after duly appreciating the facts of the present case, as well
as in terms of the mandate under the provisions envisaged under
Section 436/437 Cr.P.C. In this regard, Ld. Addl. PP for the State
further averred that the offences/allegations levelled against the
accused persons/respondent nos. 2-6 are bailable in nature, besides
Ld. Trial Court duly noted that no reasons for cancellation of bail
granted to the said accused persons was even forthcoming in the
instant case, considering that there are no allegation against
respondent nos. 2-6/accused persons to breach the terms of bond as
it relates to the accused persons’ time and place of attendance.
Consequently, Ld. Addl. PP for the State entreated that the present
petition may be dismissed at the outset, as not maintainable,
besides, no irregularity can be attributed to the impugned order,
which was passed by the Ld. Trial Court as per the provisions of
law.
5. The arguments of Ld. Legal Aid Counsel for the
petitioners/revisionists as well as that of Ld. Addl. PP for the State
have been heard as well as the record(s), including the records of
Ld. Trial Court, thoroughly perused.
6. In light of the facts and circumstances brought before
this Court, the questions that outrightly falls for consideration is
qua the maintainability of the present revision petition against the
order dismissing the revisionists’ application seeking cancellation
of bail of respondent nos. 2-6/accused persons, passed by the Ld.
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ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.02.10
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Trial Court. Relevantly, in order to determine the said conundrum,
this Court deems it apposite to outrightly refer and reproduce the
provisions under Section 438 BNSS1, as under;
“438. Calling for records to exercise powers of
revision–(1) The High Court or any Sessions Judge
may call for and examine the record of any proceeding
before any inferior Criminal Court situate within its or
his local jurisdiction for the purpose of satisfying
itself or himself as to the correctness, legality or
propriety of any finding, sentence or order, recorded
or passed, and as to the regularity of any proceedings
of such inferior Court, and may, when calling, for
such record, direct that the execution of any sentence
or order be suspended, and if the accused is in
confinement that he be released on his own bond or
bail bond pending the examination of the record.
Explanation–All Magistrates, whether Executive
or Judicial, and whether exercising original or
appellate jurisdiction, shall be deemed to be inferior to
the Sessions Judge for the purposes of this sub-section
and of Section 439.
(2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial
or other proceeding….”
(Emphasis supplied)
7. Pertinently, from a perusal of the aforesaid, it is quite
evident that the revisional jurisdiction of this Court can be invoked
either suo motu or an application of the party(ies), solely in the
cases where there is a palpable error, non-compliance of the
provision of law, decision of Trial Court being completely
erroneous or where the judicial decision is exercised arbitrarily. In
1
Pari materia provision under Section 397 Cr.P.C. provides as, “397. Calling for records to exercise of
powers of revision-(1) The High Court or any Sessions Judge may call for and examine the record of
any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence
or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may,
when calling for such record, direct that the execution of any sentence or order be suspended, and if the
accused is in confinement, that he be released on bail or on his own bond pending the examination of the
record.
Explanation – All Magistrates, whether Executive or Judicial, and whether exercising original or
appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-
section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial or other proceeding…”
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ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.02.10
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this regard, reliance is placed upon the decision of the Hon’ble
Supreme Court in Amit Kumar v. Ramesh Chander, (2012) 9 SCC
460, wherein the Hon’ble Court while explicating the various
contours of the provision under Section 397 Cr.P.C. (pari materia
with Section 438 BNSS) observed as under:
“12. Section 397 of the Code vests the court with
the power to call for and examine the records of an
inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order
made in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders,
which upon the face of it bears a token of careful
consideration and appear to be in accordance with
law. If one looks into the various judgments of this
Court, it emerges that the revisional jurisdiction can
be invoked where the decisions under challenge are
grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no
evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own
merits.
13. Another well-accepted norm is that the
revisional jurisdiction of the higher court is a very
limited one and cannot be exercised in a routine
manner. One of the inbuilt restrictions is that it should
not be against an interim or interlocutory order. The
Court has to keep in mind that the exercise of
revisional jurisdiction itself should not lead to
injustice ex facie. Where the Court is dealing with the
question as to whether the charge has been framed
properly and in accordance with law in a given case, it
may be reluctant to interfere in exercise of its
revisional jurisdiction unless the case substantially
falls within the categories aforestated. Even framing
of charge is a much advanced stage in the proceedings
under the CrPC.”
(Emphasis supplied)
8. Clearly, it may be noted from above that the
revisional jurisdiction of the higher court is quite limited and
cannot be exercised in a routine manner. Concomitantly, another
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.02.10
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inherent inhibition/embargo to the exercise of the revisional
jurisdiction of Courts is envisaged under Sub-Section (2) of
Section 397 Cr.P.C. (corresponds with Section 438(2) BNSS),
which bars the maintainability of revision against ‘interlocutory
order’, objective behind the said provision being to avoid delay in
enquiry and/or trial. Pertinently, the meaning of words/expression,
‘interlocutory order(s)’ has been persistently asserted in various
decisions of Courts, including that of the Hon’ble Supreme Court.
In this regard, reference is outrightly made to the decision of the
Hon’ble Supreme Court in Amar Nath & Ors. v. State of Haryana
& Anr., (1977) 4 SCC 137, wherein the Hon’ble Court remarked as
under:
“6. …The term “interlocutory order” is a term of
well-known legal significance and does not present
any serious difficulty. It has been used in various
statutes including the Code of Civil Procedure, Letters
Patent of the High Courts and other like statutes. In
Webster’s New World Dictionary “interlocutory” has
been defined as an order other than final decision.
Decided cases have laid down that interlocutory
orders to be appealable must be those which decide
the rights and liabilities of the parties concerning a
particular aspect. It seems to us that the term
“interlocutory order” in Section 397(2) of the 1973
Code has been used in a restricted sense and not in any
broad or artistic sense. It merely denotes orders of a
purely interim or temporary nature which do not
decide or touch the important rights or the 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 revison 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 proceeding, 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 which affect or adjudicate the rights of the
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ABHISHEK by ABHISHEK
GOYAL
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accused or a particular aspect of the trial cannot be
said to be interlocutory order so as to be outside the
purview of the revisional jurisdiction of the High
Court.”
(Emphasis supplied)
9. Similarly, the Hon’ble Supreme Court in K.K. Patel
v. State of Gujarat, (2000) 6 SCC 195, while elucidating the words
‘interlocutory order’, noted as under:
“11. That apart, the view of the learned Single
Judge of the High Court that no revision was
maintainable on account of the bar contained in
Section 397(2) of the Code, is clearly erroneous. It is
now well-nigh settled that in deciding whether an
order challenged is interlocutory or not as for Section
397(2) of the Code, the sole test is not whether such
order was passed during the interim stage (vide Amar
Nath v. State of Haryana [(1977) 4 SCC 137 : 1977
SCC (Cri) 585] , Madhu Limaye v. State of
Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10],
V.C. Shukla v. State through CBI [1980 Supp SCC
92: 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and
Rajendra Kumar Sitaram Pande v. Uttam [(1999) 3
SCC 134 : 1999 SCC (Cri) 393] ). 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. In the present case, if the
objection raised by the appellants were upheld by the
Court the entire prosecution proceedings would have
been terminated. Hence, as per the said standard, the
order was revisable.”
(Emphasis supplied)
10. Appropriately, to comprehensively deal with the
issue in hand it is further apposite to refer to the decision of the
Hon’ble Supreme Court in Girish Kumar Suneja v. CBI, (2017) 14
SCC 809, wherein the Hon’ble Court, while appreciating the
distinction between; final, intermediate and interlocutory order as
well as elucidating the connotation of ‘intermediate order(s)’, inter
alia, observed as under;
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“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.
*** *** ***
21. The concept of an intermediate order was
further elucidated in Madhu Limaye v. State of
Maharashtra [Madhu Limaye v. State of Maharashtra,
(1977) 4 SCC 551: 1978 SCC (Cri) 10] 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 effect of
terminating the proceedings and thereby resulting in a
final order. 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.”
(Emphasis supplied)
11. Evidently, in conspectus of the above, it is observed
that the orders which may be passed by a criminal court may be
categorized as; final order(s), intermediate order(s) and
interlocutory order(s). Quite understandably, final orders are those
that finally adjudicate the rights of parties, such as
orders/judgments of acquittal or conviction. In contradistinction,
intermediate orders are the ones which, when reversed, have an
effect of terminating the proceedings and thereby resulting in final
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ABHISHEK by ABHISHEK
GOYAL
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order(s). Correspondingly, interlocutory orders, neither finally
adjudicate the rights of parties nor have an effect of
terminating/culminating proceedings when the objections raised
by a party(ies) are upheld.
12. Apposite to further note here that the test for
determination of the nature of an order cannot be to see whether
the issue which it determines would come to a culmination, rather,
as aforenoted final orders are ones which finally determine the
dispute and intermediate orders are one, which, when reversed
would terminate a proceeding. Needless to further observe that in
case every order, which determines some/an issue is treated as
intermediate or final order, would result in opening floodgates of
litigation and protracting trial, which menace was sought to be
curtailed with the insertion of sub-Section (2) under Section 397
Cr.P.C. Relevant in this regard, to further make a reference to the
decision of the Hon’ble High Court of Delhi in Neelam Mahajan v.
State, 2016 SCC OnLine Del 2281, wherein the Hon’ble Court
noted as under;
“20. After perusing the impugned order as well as
the material placed before this court and in the light of
the facts and circumstances of the present case this
Court is also of the opinion that every interlocutory
order merely because it disposes of an aspect, nay a
vital aspect in the course of a pending proceeding
even adversely affecting a party for the time being
would not be something other than interlocutory.”
(Emphasis supplied)
13. Accordingly, in light of the foregoing, it is quite
evident that every order, which would adjudicate on an aspect of a
proceeding cannot be termed as final or intermediate order.
Consequently, the Courts have to be cautious to determine whether
the order sought to be impugned by means of a petition under
Section 397 Cr.P.C./438 BNSS is barred as against an
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Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.02.10
17:13:19 +0530
interlocutory order or not. Consequently, in the backdrop of
foregoing discussion, when the impugned order/order dated
22.08.2024, passed by the Ld. Trial Court is conscientiously
evaluated, this court unambiguously reaches a conclusion that the
said order/impugned order does not have an effect of terminating
the proceedings before the Ld. Trial Court, in any manner, hence,
is quite evidently not in a nature of final order. Further, in case, the
arguments addressed by Ld. Legal Aid Counsel for the revisionists
are conceded to and the objections raised by the revisionists in the
instant petition are upheld, whereby the impugned order is
reversed, same would not have effect of terminating the
proceedings before the Ld. Trial Court, bringing the impugned
order outside the purview of ‘intermediate order’. As a corollary,
the impugned order is nothing other than an interlocutory order
against which, no revision would be maintainable. Pertinent to
further note that this Court is conscious of the persistent avowals
of the superior courts affirming2 that the orders granting bail or
refusing bail or cancelling bail are merely interlocutory orders and
as such, they cannot be revised by the superior court in view of the
bar under Section 397(2) Cr.P.C. Reference in this regard is made
to the decision of the Hon’ble Allahabad High Court in Sri. Pal
Singh v. State of U.P., MANU/UP/0790/1988 , wherein the
Hon’ble Court while considering earlier decisions of the Hon’ble
Supreme Court, in an akin context remarked as under;
“4. On behalf of the State it is opposed on the
ground that it does not lie. It is contended that the
order granting or rejecting or cancelling the bail is an
interlocutory order against which no revision lies. The
two leading cases in this respect are (1) Amar Nath v.
State of Haryana MANU/SC/0068/1977: AIR 19772
Bhanwar Lal & Ors. v. State of Rajasthan, MANU/RH/0298/1978.
CR. No. 363/2024 Rehana & Ors. v. State & Ors. Page No. 15 of 19
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ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.02.10
17:13:23 +0530
SC 2185 and Madhu Limaye v. State of Maharashtra
1978 AWC 96.
5. The Court has held that the expression
interlocutory has not been so used in Section 397(2) of
the Code of Criminal Procedure in the restricted sense
of an order which is converse to the term ‘final order’.
An order which does not decide any of the matters in
dispute or which does not substantially decide any
vital issue in the case against the accused, touching the
merits of the case or rights of the parties, will still be
an interlocutory order. Cataloguing of such orders will
not be possible. In the case of ‘Amar Nath’, while
giving examples of what is interlocutory within the
meaning of Section 397(2) of the Code, the Supreme
Court mentioned the word ” passing orders for bail”.
This term was interpreted by a Division Bench of this
Court in the case of Bhola v. State
MANU/UP/0625/1979: 1979 ACR 164 and it was
held that it will include the granting, rejecting and
cancelling the bail. This being the legal position, the
order cancelling the bail will be an interlocutory order
against which a revision shall be barred under Section
397(2) of the Code of Criminal Procedure.”
(Emphasis supplied)
14. Clearly, in light of the aforesaid, it is quite clear that
the orders granting bail or refusing bail or cancelling bail have
been repeatedly held by superior courts to be interlocutory in
nature. As a corollary, the order refusing to cancel bail, in the
considered opinion of this Court is also interlocutory in nature for
the reason that the same does not determine the right of an
applicant in an unqualified term, against which, no revision would
lie. Even otherwise, when the order of the Ld. Trial
Court/impugned order is scrupulously analysed, no infirmity,
irregularity, palpable error and/or non-compliance of the provision
of law, in the considered opinion of this Court, determinable
therein by this Court. On the contrary, as aforenoted, the Ld. Trial
Court, while dismissing the application of the revisionists seeking
cancellation of bail granted to the accused persons/respondent nos.
2-6 duly and correctly noted that the provision under Section
CR. No. 363/2024 Rehana & Ors. v. State & Ors. Page No. 16 of 19
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ABHISHEK ABHISHEK
GOYAL
GOYAL Date: 2025.02.10
17:13:26 +0530
436(2) Cr.P.C.3 is limited in its applicability to cases where the
accused, admitted to bail in bailable offences, fails to comply with
the conditions of the bail-bond as regards the time and place of
attendance. Further, since in the instant case, the
offences/allegations levelled against the accused
persons/respondent nos. 2-6 are bailable in nature, the Ld. Trial
Court/Ld. MM/Ld. JMFC is devoid of any power to cancel the bail
granted to an accused persons/respondent nos. 2-6,
charged/accused of bailable offences, in the exercise of its
jurisdiction even under Section 437 Cr.P.C. (pari materia to
Section 480 BNSS). Reference in this regard is made to the
decision of the Hon’ble Orissa High Court in Madhab Chandra
Jena and Ors. v. State of Orissa, MANU/OR/0460/1986 , wherein
the Hon’ble Court explicated the law in similar situation under the
following observations;
“2. The petitioners had been granted bail under
Section 436, of the Criminal Procedure Code under
which section admission into hail is as of right. The
Section itself does not make any provision for
cancellation of bail. A benefit to which one is entitled
as of right cannot be taken away without an express
sanction of the law. There being no such provision
under Section 436 Criminal Procedure Code such a
power cannot be conceded to the Magistrate on a plain
reading of the section. The only provision for
cancellation of bail is found in Section 437(5) where
the court which has released a person accused of non
bailable offences on bail is authorised if it considers
necessary so to do, to direct that the person be
rearrested and be committed to custody. The
provision, being in respect of non bailable offences,
cannot be invoked in respect of bailable ones…”
(Emphasis supplied)
3
Pari materia to Section 478(2) BNSS, which provides, “Notwithstanding anything in sub-section (1),
where a person has failed to comply with the conditions of the bond or bail bond as regards the time and
place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the
same case he appears before the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond or bail bond to pay the
penalty thereof under section 491.” (Emphasis supplied)
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.02.10
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15. Consequently, in light of the foregoing discussion,
facts and circumstances of the present case as well as judicial
dictates, the only conclusion which this Court can (and has)
unambiguously arrived is that impugned order/order dated
22.08.2024, passed by the Ld. Trial Court is nothing order than an
interlocutory order, not amenable to revisional jurisdiction of this
Court. It is reiterated that under the impugned order, Ld. Trial
Court did not adjudicated any right(s) of the party(ies)/revisionists,
rather, merely refused the application of the revisionists to cancel
bail granted to the accused persons/respondent nos. 2-4. Even
otherwise, for the reasons aforenoted, no infirmity, irregularity,
palpable error and/or non-compliance of the provision of law, in
the considered opinion of this Court, determinable even on merits
in the order dated 22.08.2024 of the Ld. Trial Court/impugned
order. Further, apposite to note at this stage that, though, this Court
holds highest regard for the decision(s) relied upon by Ld. Counsel
for the revisionists, however, the same would not be of any
assistance to the revisionists, in the manner as sought to be relied
upon by the Ld. Legal Counsel, as the facts and circumstances of
the present case are clearly distinguishable. Ergo, the present
revision petition deserves to be dismissed and is hereby dismissed
as not maintainable both on merits as well as law.
16. Conclusively, it is reiterated that the impugned order,
i.e., order dated 22.08.2024, passed by Ld. Judicial Magistrate
First Class-05/Ld. JMFC-05, Central, Tis Hazari Court in case
titled as; ‘Smt. Rehana v. Irfan, Ct. Case No. 531395/2016 is
interlocutory in nature and not amenable to the scrutiny of this
Court under its revisional jurisdiction. Accordingly, the present
revision petition is dismissed in view of bar envisioned under the
CR. No. 363/2024 Rehana & Ors. v. State & Ors. Page No. 18 of 19
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.02.10
17:13:36 +0530
provisions under Section 438(2) BNSS/Section 397(2) Cr.P.C., as
not maintainable. Needless to reiterate no infirmity, irregularity,
palpable error and/or non-compliance of the provision of law, in
the considered opinion of this Court, determinable even on merits
in the order dated 22.08.2024 of the Ld. Trial Court/impugned
order.
17. Trial Court Record be sent back along with a copy of
this order.
18. Revision file be consigned to record room after due
compliance. Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.02.10
17:13:56
+0530Announced in the open Court (Abhishek Goyal)
on 10.02.2025 ASJ-03, Central District,
Tis Hazari Courts, DelhiCR. No. 363/2024 Rehana & Ors. v. State & Ors. Page No. 19 of 19