Allowed¶30

Abhishek Saxena v. State NCT of Delhi & Anr.

Delhi HC14 May 2026CRL.M.C./3793/2026

Case brief

AI extract

What is this about?

CRL.M.C. 3793/2026; Delhi High Court; Justice Girish Kathpalia; decision 14.05.2026; Section 311 CrPC application allowed without reasons set aside; Section 397(2) CrPC / Section 438(2) BNSS bar on revision against interlocutory orders; inherent powers invoked for gross injustice or perversity; FIR No. 1363/2015 PS Vasant Vihar; complainant recalled as witness; remanded for reasoned order after hearing both sides; petitioner Abhishek Saxena; Kirti Uppal Senior Advocate.

What did the court decide?

Impugned order dated 30.01.2026 set aside; matter remanded to the learned trial court to pass a reasoned order after granting hearing to both sides on the prosecution's application under Section 311 CrPC. ¶30

Abhishek Saxena Vs State NCT of Delhi & Anr. — Delhi HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

¶30

Issue for consideration

Whether the trial court's order dated 30.01.2026 allowing the prosecution's application under Section 311 CrPC, which is completely bereft of any reason, is sustainable in the eyes of law and should be set aside. +1 more

¶17

Court's answer

The learned trial court failed to record any reason, much less discussion, for rejecting the stand taken by the petitioner in reply to the application under Section 311 CrPC, and none of the parameters required to be considered while dealing with such an application were discussed in the impugned order.

¶28

Ratio / Principle

An order passed on an application under Section 311 CrPC is an interlocutory order; Section 397(2) CrPC [Section 438 (2) BNSS] explicitly prohibits a revision petition against such orders, and what is explicitly prohibited by law cannot be given backdoor entry by invoking inherent powers.

¶19

Key takeaways

Where an order impugned before the High Court conveys a case of gross injustice or perversity, it is justified for the High Court to invoke inherent powers notwithstanding the statutory bar; the present case falls in this category.ratio¶19
Being unable to uphold the impugned order, the court set it aside.ratio¶29
The petition is allowed and the matter is remanded to the learned trial court to pass a reasoned order after granting hearing to both sides on the prosecution's application under Section 311 CrPC; since the trial is listed the next day, the trial court shall fix a date for such hearing as convenient to the Court's Calendar.

Detailed headnote1 paragraphs

High Court of Delhi (Justice Girish Kathpalia, oral judgment, 14.05.2026) allowed CRL.M.C. 3793/2026 filed by Abhishek Saxena (accused in trial arising out of FIR No. 1363/2015, PS Vasant Vihar) and set aside the trial court's order dated 30.01.2026 which had allowed the prosecution's application under Section 311 CrPC (recalling the complainant as witness with one cross-examination opportunity on NDOH). Holding that although Section 397(2) CrPC [Section 438 (2) BNSS] bars revision petitions against interlocutory orders, the High Court may invoke inherent powers where the impugned order conveys gross injustice or perversity, the court found the impugned order bereft of any reasons, failing to address the accused's reply or the relevant parameters, and remanded the matter to the trial court for a reasoned order after hearing both sides.

¶1

$~79

¶2

IN THE HIGH COURT OF DELHI AT NEW DELHI

¶3

% Date of Decision: 14.05.2026

¶4

- CRL.M.C. 3793/2026, CRL.M.A. 15382/2026, 15383/2026, 15385/2026 & 15384/2026

¶5

ABHISHEK SAXENA .....Petitioner

¶6

Through: Mr. Kirti Uppal, Senior Advocate with Mr. Salman Hashmi, Mr. Sana Hashmi, Mr. Zeeshan Hashmi, Mr. Sheezam Hashmi, Mr. K. Khan, Ms. Ashmita Shukla and Mr. Sarthak Jain, Advocates

¶7

versus

¶8

STATE NCT OF DELHI & ANR. .....Respondents Through: Mr. Amit Ahlawat, APP for the State with SI Tamanna and SI Nisha Mr. Sunil Kumar Singh and Mr. Hariom Sharan Singh, Advocates for R-2

¶9

CORAM: JUSTICE GIRISH KATHPALIA

¶10

J U D G M E N T (ORAL)

¶11

Petitioner seeks setting aside of the order dated 30.01.2026, whereby application under Section 311 CrPC filed by prosecution was allowed by the learned trial court while holding trial arising out of case FIR No. 1363/2015 CRL.M.C. 3793/2026 Page 1 of 3 pages

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Page 1 of 3 pages

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Digitally signed by GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, 2.5.4.20=8401dd889b27a77b2f65ffffe4afe GIRISH c45569af3962c6fb4835d435f97626cacca, ou=HIGH COURT OF DELHI,CID - 7047638, KATHPALIA postalCode=110003, st=Delhi, serialNumber=d3e86796451ec45c07b5d15570996b40f80cbd2eee60402c487965ff 801e26fa, cn=GIRISH KATHPALIA Date: 2026.05.14 05:30:57 +05'30'

¶14

Signature Not Verified

¶15

Digitally Signed By:RAHUL YADAV Signing Da te:1 4.05.2026 17:37:01

¶16

of Police Station Vasant Vihar.

¶17

Learned Senior Counsel appearing on behalf of petitioner/accused submits that the impugned order is not sustainable in the eyes of law as the same is completely bereft of any reason. It is submitted by learned Senior Counsel that none of the submissions raised in the reply to the application under Section 311 CrPC were dealt with by the trial court.

¶18

Learned APP accepts notice and in all fairness expresses inability to support the impugned order.

¶19

It is trite that an order passed on an application under Section 311 CrPC is an interlocutory order and Section 397(2) CrPC [Section 438 (2) BNSS] explicitly prohibits a revision petition against such orders. It is also trite that what is explicitly prohibited by law cannot be given backdoor entry by invoking inherent powers. But it is equally trite that where an order impugned before the High Court conveys a case of gross injustice or perversity, it would be justified for the High Court to invoke inherent powers. The present case, in my view falls in this category.

¶20

For ready reference, the relevant portion of the impugned order is extracted below:

¶21

“Accused has filed reply to the application u/s 311 CrPC. Let the same be taken on record.

¶22

Submission heard. Reply perused.

¶23

In view of the submissions made, the application u/s 311 CrPC is allowed. The complainant is recalled as witness. The

¶24

CRL.M.C. 3793/2026 Page 2 of 3 pages

¶25

Digitally signed by GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, 2.5.4.20=8401dd889b27a77b2f65ffffe4afec GIRISH 45569af3962c6fb4835d435f97626cacca, ou=HIGH COURT OF DELHI,CID - 7047638, postalCode=110003, st=Delhi, serialNumber=d3e86796451ec45c07b5d15 KATHPALIA 570996b40f80cbd2eee60402c487965ff801 e26fa, cn=GIRISH KATHPALIA Date: 2026.05.14 05:30:45 +05'30'

¶26

Signature Not Verified Digitally Signed By:RAHUL YADAV Signing Da te:1 4.05.2026 17:37:01

¶27

accused will be provided with only one opportunity to crossexamine the witness on the NDOH. Application u/s 311 CrPC stands disposed of accordingly.”

¶28

As is obvious, the learned trial court failed to record any reason, much less discussion for rejecting the stand taken by the present petitioner in reply to the application under Section 311 CrPC. Also, none of the parameters which have to be considered while dealing with such application have been discussed in the impugned order.

¶29

Under these circumstances, I am unable to uphold the impugned order, so the same is set aside.

¶30

Consequently, the petition is allowed and matter is remanded to the learned trial court to pass a reasoned order after granting hearing to both sides on the application of prosecution under Section 311 CrPC.

¶31

It is informed by both sides that the trial is listed tomorrow itself. That being so, tomorrow the learned trial court shall fix a date for hearing both sides on the application under Section 311 CrPC as convenient to Calendar of the Court.

¶32

Digitally signed by GIRISH KATHPALIA DN: c=IN, o=HIGH COURT OF DELHI, 2.5.4.20=8401dd889b27a77b2f65ffffe4af GIRISH ec45569af3962c6fb4835d435f97626cacc a, ou=HIGH COURT OF DELHI,CID - 7047638, postalCode=110003, st=Delhi, KATHPALIA serialNumber=d3e86796451ec45c07b5d15570996b40f80cbd2eee60402c487965ff 801e26fa, cn=GIRISH KATHPALIA Date: 2026.05.14 05:30:19 +05'30'

¶33

GIRISH KATHPALIA (JUDGE)

¶34

MAY 14, 2026 ‘ rs’

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CRL.M.C. 3793/2026 Page 3 of 3 pages

¶36

Signature Not Verified Digitally Signed By:RAHUL YADAV Signing Da te:1 4.05.2026 17:37:01

Abhishek Saxena v. State NCT of Delhi & Anr.

Case brief

What is this about?

What did the court decide?

Abhishek Saxena v. State NCT of Delhi & Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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