HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 78
Case :- CRIMINAL REVISION No. – 4614 of 2019
Revisionist :- Bilal
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Narendra Kumar,Rabindra Bahadur Singh
Counsel for Opposite Party :- G.A.
Hon’ble Anil Kumar-IX,J.
Heard learned counsel for the applicant and learned AGA for the State as well as perused the record.
This revision has been preferred under Section 397/Section401 Cr.P.C. against the order dated 18.10.2019 passed by learned Special Judge, POCSO Act, Moradabad in Session Trial No.196 of 2019 arsing out of Case Crime No.32 of 2019, under Section 377 IPC and 5/6 Protection of Children from Sexual Offence Act, Police Station- Kanth, District- Moradabad, whereby the learned Magistrate refused to recall witness PW-1, Anwar Hussain for cross-examination, whose examination-in-chief was recorded on 02.09.2019.
Learned counsel for the revisionist contended that impugned order has been passed illegally and against the natural justice. On the date fixed, the revisionist was in jail and no opportunity has been given to him for cross-examination of PW-1. Impugned order will result miscarriage of justice for the revisionist.
Learned AGA has opposed the prayer made by the learned counsel for the revisionist and submitted that the impugned order 18.10.2019 is an interlocutory order and against this order revision is barred under Section 397(2) Cr.P.C. Learned AGA further contended that full opportunity was given to learned counsel for the revisionist but his counsel did not appear before the court below to cross-exam to PW-1.
Section 397(2) Cr.P.C. provides as under:-
” 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.”
After hearing the learned counsel for the revisionist as well as learned AGA and after going through the record of the case, I find that the provisions of Section 397 of the Cr.P.C. cannot be invoked in the present case. The order which is sought to be challenged is an interlocutory order passed by the Magistrate during the course of the trial and such order is not revisable under Section 397(2) Cr.P.C.
Thus, this criminal revision is not maintainable and is dismissed accordingly.
Order Date :- 10.12.2019
Ashutosh Pandey
