TMI Blog2000 (10) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated the facts giving rise to the above questions are, that on 28th October, 1987 a complaint under Section 135(1)(b) of the Customs Act, 1962 and Section 85 of the Gold (Control) Act, 1968 was filed against the present petitioner in the court of learned Additional Chief Metropolitan Magistrate (in short learned ACMM). On 23rd August, 1989 Inspector (Preventive) Customs (PW-1) was called to the witness box. His examination-in-chief was recorded. To some extent he was cross-examined also. On one of the date of the cross-examination, adjournment was sought by counsel for the present petitioner for confronting the witness with some documents. Adjournment was granted. But thereafter the said witness Shri V.P.S. Khurana (PW-1) was not produced in spite of number of opportunities having been given to the Customs Department. At last on 21st November, 1994 warning was also administered. On that day last opportunity was given to the prosecution to produce PW-1 for cross-examination. In spite of the warning that evidence would be closed the prosecution did not produce PW-1 on the date fixed nor furnished any cogent reason for his non-appearance. Even thereafter six more opportunities we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me up before the Apex Court in the case of Amarnath Ors. v. State of Haryana Ors. - (1978) 1 SCR 222 = AIR 1977 SC 2185 while interpreting the "interlocutory order" it observed that "It is a term of well-known legal significance. "Interlocutory order" to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad and artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or 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 revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this provision in Section 397 of the Code." 4.Admittedly, the orders which are passed as a step in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie. But orders which are matters of moment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r subjecting to cross-examination. 6.Perusal of the record show that the orders passed by Mrs. Sunita Gupta, the then learned ACMM and of Shri N.K. Gupta, Additional Sessions Judge had not been challenged in the second revision petition filed by the respondent which was listed before Shri G.P. Thareja, Additional Sessions Judge. Therefore, in our view, Mr. Thareja could not have dealt with the order of his predecessor Shri N.K. Gupta, Additional Sessions Judge as well as of the then learned ACMM. Mr. G.P. Thareja was not sitting in appeal over the order of his predecessor Additional Sessions Judge, a Judge of concurrent jurisdiction. He could not have pronounced that the order passed by Shri N.K. Gupta, Additional Sessions Judge was bad in law. By doing so he exceeded his jurisdiction. He assumed the power which never vested in him. It is settled law that an Additional Sessions Judge of concurrent jurisdiction cannot sit over the judgment of another Additional Sessions Judge. It amounts to legal impropriety. Admittedly respondent had not challenged the order of Mr. N.K. Gupta, Additional Sessions Judge in its second revision filed before Mr. G.P. Thareja, but even for the sake of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd subject to the permission re-examination also. It is only when the witness is permitted to be cross-examined that the credibility of the witness can be looked into. The emphasis is on the fact that the witness had been cross-examined fully. Only thereafter the evidence given by a witness in judicial proceeding is relevant for the purpose of proving a particular fact. But if the witness has not been permitted to be cross-examined then such a statement cannot be termed as an evidence of the witness nor can it be read in evidence. It must be remembered that where part cross-examination took place such a statement cannot be called evidence in the eyes of law. The procedure as laid down under the Evidence Act is clear and unambiguous. Under the Evidence Act, evidence means the examination-in-chief and cross-examination. That statement alone will form evidence. In the present case petitioner had been deprived to cross-examine PW-1 thereby dislodge his testimony. Hence incomplete statement of PW-1 in the absence of cross-examination could not be treated as evidence nor the same could be relied upon. Therefore the observation of learned ASJ that incomplete statement could have been the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power vested in it under Section 311 of the Code considering that the person to be summoned as a witness or who has to be recalled and re-examined is essential for the proper adjudication of the case. This discretion, which is vested in the court under Section 311 of the Code is to be exercised judicially and not arbitrarily. In order to exercise this power the Court must have sufficient material before it to justify its action. Prosecution pre-charge evidence in this case was closed. It was for the prosecution to show that the said evidence was essential in proving the case of the prosecution. But the prosecution did not invoke the power of the Court under Section 311 of the Code either by making oral or written request. Therefore, non-exercise of the power under Section 311 of the Code by the learned ACMM in the facts of this case could not be deprecated. 12.In these circumstances, to our mind, Shri G.P. Thareja, Additional Sessions Judge could not have suo motu given directions to learned ACMM to invoke her power under Section 311 of the Code and enforce the presence of PW-1. Such an observation in the face of the decision of Shri N.K. Gupta, the predecessor Court of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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