Patna High Court
Md. Rafique Ahmad vs The State Of Bihar And Anr. on 18 May, 2006
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad
ORDER Chandramauli Kr. Prasad, J.
1. Whether an order taking cognizance and issuance of process is an interlocutory order and therefore not revisable under the revisional jurisdiction is a vexed question of law which on several occasions had been the subject matter of adjudication and the present one is one such occasion. As answer to this question has far reaching consequence, I prefer to analyse the same in little detail.
2. Aforesaid question arises on a simple background, i.e. the complainant filed a petition of complaint before the Chief Judicial Magistrate, Bettiah, inter alia, alleging commission of offence under Section 420, 461, 468 and 471 of the Indian Penal Code. The learned Magistrate examined the complainant on solemn affirmation and after an inquiry under Section 202 of the Code of Criminal Procedure, hereinafter referred to as 'the Code', by order dated 12.12.2005 passed in Complaint Case No. 798 (C) of 2004, being prima facie satisfied that offence under Section 420, 468 and 471 of the Indian Penal Code is made out, took cognizance of the offence and directed for issuance of process against the petitioner. The petitioner aggrieved by the same, filed Cr. Revision No. 81of 2005 before the Sessions Judge, West Champaran who by order dated 2.4.2005, dismissed the revision application as not maintainable.
3. Aggrieved by the aforesaid orders of taking cognizance, directing for issuance of process by the Magistrate and dismissing the revision application preferred against the aforesaid order as not maintainable by the Sessions Judge, petitioner has preferred this application.
4. Mr. Sanjeev Kumar No. 1, appearing on behalf of the petitioner, submits that the order taking cognizance and directing for issuance of process, is not an interlocutory order and, therefore, amenable to the revisional jurisdiction of the Court.
5. Dr. Maya Nand Jha, Additional Public Prosecutor, appearing on behalf of the State, however, submits that the order taking cognizance and issuance of process is a step in the direction of trial and as such, it is an interlocutory order and hence, in view of the bar put by Section 397(2) of the Code order taking cognizance and issuance of process, is not subject to revision.
6. The rival submission necessitates examination of the scheme of the Code and what would be the meaning of the expression 'interlocutory order' used in Section 397(2) of the Code. Section 397 of the Code, which is relevant for the purpose reads as follows:
Section 397.- 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 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.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the either of them.
(Underlining mine)
7. The aforesaid provision confers power to the High Court and the Sessions Judge to examine the record of any proceeding before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any order passed by such inferior court. However, Section 397(2) of the Code clearly provides that power of revision conferred by Section 397(1) of the Code, shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. This necessitates examination as to what actually the expression 'interlocutory order' means.
8. It is relevant here to state that the expression 'interlocutory order' has not been defined. The concept of an interlocutory order qua the revisional jurisdiction was completely foreign to the earlier Code of Criminal Procedure, 1898. Subsequently, the law makers thought that there had been large number of arrears and the High Courts were flooded with revisions against the interim or interlocutory orders causing enormous delay in the disposal of cases and unnecessarily protracting the trial and hence bill was introduced to overcome this malady and the objects and reasons for introducing Section 397(2) of the Code is as follows:
The powers of revision against the interlocutory order are being taken away as it had been found to be one of the main contributory factors in the delay of disposal of criminal cases.
9. Replying to the debate in the Lok Sabha on Sub-clause (2) of Clause 397, Sri Ram Niwas Mirdha, the Minister concerned, observed as follows:
It was stated before the Select Committee that a large number of appeals against interlocutory orders are filed with the result that the appeals got delayed considerably. Some of the more notorious cases concern big business persons. So, this new provision was also welcomed by most of the witnesses as well as the Select Committee. This was a well-thought out measure so we do not want to delete it.
10. Interlocutory order, according to Blacks Law Dictionary, is an order which is interim or temporary, not constituting a final resolution of the whole controversy. In Webster's New World Dictionary, 'interlocutory' has been defined as an order other than the final decision.
11. The Supreme Court had the occasion to consider this quest ion in the case of Amar Nath and Ors. v. State of Haryana and Ors. in which it has been held as follows:
The main question which falls for determination in this appeal is as to the what is the connotation of the term "interlocutory order" as appearing in Sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal 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 revision 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 not doubt amount to interlocutory ordrs 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 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.
12 .The term "interlocutory order" came up for interpretation again before the Supreme Court in the case of Madhu Limaye v. The State of Maharashtra in which Untwalia, J. speaking for the Court in his forth right style held as follows:
The majority view is based upon the distinction pointed out in the above order within the meaning of Article 134(1)(c). While Bachawat J., said at page 695: "It is merely a preliminary step in the prosecution and therefore an interlocutory orders." Even though there may be a scope for expressing different options apropos the nature of the order which was under consideration in Mohan Lal's case, in our judgment, undoubteldy, an order directing the filing of a complaint after enquiry made under a provision of the 1973 Code, similar to Section 476 of the 1898 Code will not be an interlocutory order within the meaning of Section 397(2). The order will be clearly revisable by the High Court. We must, however, hasten to add that the majority decision in Mohan Lal's case treats such an order finally concluding the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lal's case. Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).
Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test, laid down in Kuppuswami Rao's case and in holding that an order of the kind under consideration being not a final order must necessrily be an interlocutory one. If a complaint is dismissed under Section 203 or under Section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the fact of it? The legislature left the power to order further inquiry intact in Sect ion 398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for sectting aside the order adversely made against him in similar circumstances and to quash the proceeding? The answer must be given in favour of the just and reasonable view expressed by us above.
13. In the case of Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr. 1999 (2) PLJR 5 (SC), the question arose as to whether an order issuing process is an interlocutory order and therefore, subject to revision or not. Same has been answered by the Supreme Court in the following words.
6.-Discretion in the exercise of revisional jurisdiction should therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under Sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath and Ors. v. State of Haryana this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an interlocutory order. In Madhu Limaye v. State of Maharastra a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla V. State this Court f has held that the term interlocutory order used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final and therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under Sub-section (2) of Section 397 of the Code.
14. To a person in the field of law, 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 Criminal Procedure, Letters Patents of the High Court and other like Statutes. In my opinion, the term 'interlocutory order' in Section 397(2) of the Code has been used in a restricted sense and not in any broad or artistic sense. The term 'interlocutory order' used in Section 397(2) of the Code, in my view, denotes orders of a purely interim or temporary nature passed at various stages, namely, trial, enquiry or other proceeding which do not decide or touch the important rights or the liabilities of the party and its object is to cut down delays in these stages. An order which decides the rights and liabilities of the party substantially and which affects the right of the accused or the prosecutor, cannot be said to be an interlocutory order so as to bar revision against that order, notwithstanding the fact that it does not finally resolves the entire controversy. I hasten to add that a step in aid of the pending proceeding may no doubt, shall be an interlocutory order against which no revision would lie but an order substantially affecting the right of an accused, cannot be said, to be an inter1ocutory order.
15. Dr. Jha, alternatively submits that the order taking cognizance may not be an interlocutory order but the same is not subject to revision before the Sessions Judge and the only remedy is to invoke the jurisdiction of this Court under Section 482 of the Code. In support of the submission, he has placed reliance on a judgment of this Court in the case of Smt. Bacha Devi @ Bacha Dai Devi. v. The State of Bihar and Anr. 2000 (1) PLJR 930. He has drawn my attention to the following passage from para-4 of the said judgment which reads as follows:
4.-xxx Be it what it may the only point involved in this petition is that the Sessions Judge has no jurisdiction to entertain revision petition against the order of cognizance. Such entertaining of revision petition is without jurisdiction and hence the order of the Sessions Judge cannot be maintained.
16. Yet another decision on which reliance has been placed is the decision of this Court in the case of Birendra Narayan Choudhary v. State of Bihar & Ghuran Paswan 2001 (3) PLJR 468, In the said case, an order taking cognizance and issuance of process was challenged in a revision application which was rejected but the order of the Sessions Judge was found to be non-est in the eye of law on the ground that only remedy is to approach the High Court under Section 482 of the Code. Paragraph Nos. 2 and 3 of the said judgment which are relevant for the purpose are being quoted hereinbelow:
2. xxx Against the said cognizance and issuance of notice, revision was preferred that too belatedly and the revision petition has been rejected as barred by limitation.
3. There is no scope in entertaining any revision petition by the Sessions Judge against the order of cognizance being taken and issuance of notice and only High Court has jurisdiction to interfere with the said orders under Section 482 Cr.P.C. So any order passed by the Sessions Judge is non-est in the eye of law.
17. It is relevant here to state that in the case of Chandra Kumar Singh v. State and Anr. 2002 (3) PLJR 206 this Court rendered conflicting opinion and held that order issuing process is revisable. Relevant portion of the judgment reads as follows:
4. So far the first ground that a revision does not lie against the order of cognizance, the same being an interlocutory order, I am of the opinion that the word "interlocutory" has not been defined in the Criminal Procedure Code. So the question whether an order is an interlocutory order or a final order will depend on the circumstances of each an every particular case. An enquiry under Section 202 Cr.P.C. culminates in an order passed under Section 203 or 204. The order under Section 203 is final and so, normally, revision lies against such orders. So far as the order under Section 204 is concerned, this order relates to the finding of the Magistrate that there is sufficient material to proceed against particular persons and then summons are directed to be issued. So if an order under Section 204 is passed on the basis of a police report, that will be an interlocutory order because the criminal proceeding commences pursuant to this order, but, so far the order under Section 204 passed, as a result of the enquiry under Section 202 Cr.P.C., that order shall be final, so far the criminal proceeding initiated under Section 202 Cr.P.C, is concerned. I am, therefore, of the opinion that order passed under Section 204 in the proceeding initiated under Section 202 Cr.P.C. shall be revisable.
18. Although in the cases of Bacha Devi (supra) and Birendra Narayan Choubey (supra) this Court has not gone into the question as to why the Sessions Judge lacks jurisdiction to entertain the revision petition, none the less, I would had referred the matter to a larger Bench but having found that the judgments of this Court in the cases refered to above have been rendered without considering the judgment of the Supreme Court in the cases of Amar Nath, Madhu Limaye and Rajendra Kumar Sitaram Pande (supra) directly dealing with the question, I am constrained to hold that the aforesaid judgments are judgments in per in curium and fit to be ignored.
19. There is added reason for not referring this matter to the larger Bench. To resolve the conflict between the decisions of this Court in the case of Bacha Devi (supra) and Chandra Kumar Singh (supra), the matter was referred to a Division Bench for its authoratative pronouncement in the case of Shruti Enterprises Ltd. v. State of Bihar and Ors. 2005 (1) PLJR 223. The Division Bench on reference held that the order of the Magistrate directing for issuance of process is not an interlocutory order and the Sessions Judge has the jurisdiction to entertain the revision against the such order. Paragraph Nos. 4 and 5 of the judgment which are relevant for the purpose, read as follows:
4. Thus, it is evident from the law laid down by the Supreme Court that the order which affects the rights of the parties is not an interlocutory order. The order taking cognizance and issuance of process against the accused persons in initiating an action which affects/adjudicates the rights of the accused persons and as such, such order cannot be said to be interlocutory order. The order which is purely interim or temporary in nature such as ordres summoning witnesses, adjourning the cases, calling for a report etc. can safely be said to be interlocutory in nature and they are not revisable. In the case of Rejendra Kumar Sitarama Pande v. Uttam 1999 (2) PLJR 5 (SC) the Apex Court has taken similar view and has held that interlocutory order is an order of purely interim or temporary nature which does not decide or adjudicate the important rights or liabilities of the parties. The order of the magistrate directing issuance of process is not interlocutory, it is intermediate or quasi final and the Sessions Judge has jurisdiction to interfere with it.
5. Thus on consideration, as discussed above, it can safely be said that the order taking cognizance and issuance of processes is not an interlocutory order and revision against the said order is maintainable.
20. Dr. Jha submits that in view of the pronouncement of the Supreme Court in the case of Subramanium Sethuraman v. State of Maharastra and Anr. 2005 SCC (Cri) 242. only remedy against the order taking cognizance and issuance of process is under Section 482 of the Code and the natural corollary of the same would be that the revision against the said order, shall not be maintainable arid my attention has been drawn to para-17 of the judgment which reads as follows:
17. - As observed by us in Adalat Prasad case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Coder and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case.
21. The decision of the Supreme Court in the aforesaid case is based on the ratio of its earlier decision in the case of Adalat Prasad v. Rooplal Zindal and Ors. In both the cases, the question was as to whether it is open to the court issuing summon to recall the same on being satisfied that the issuance of summons was not in accordance with law. In fact the correctness of the decision of the Supreme Court in the case of K.M. Mathew v. State of Kerala and Anr. (1992) SCC 217. was under consideration. In this the Supreme Court held that an accused can appear before the Court which had issued summons to recall the same and on being satisfied that the summon was erroneously and illegally issued, same can be recalled This ratio did not find favour with the Supreme Court in the case of Adalat Prasad (supra) in which it has been held as follows:
16.- Therefore, in our opinion the observation of this Court in the case of Mathew that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction does not law down the correct law.
22. It is relevant here to state that in Adalat Prasad (supra), the Supreme Court did not go into the question as to whether an order issuing process amounts to an interim order or not which would be evident from paragraph-17 of the judgment which reads as follows:
17.- In view of our above conclusion, it is not necessary for us to go into the question whether order issuing a process amounts to an interim order or not.
23. Thus, in the case of Adalat Prasad and Subramanium Sethuraman (supra), the core issue was the correctness of the view expressed in the case of K.M. Mathew and in that context, the Supreme Court observed that remedy under Section 482 of the Code shall be available to the party aggrieved against the order taking cognizance and issuance of process. None of the judgments say that revision against such an order shall not be maintainable.
24. It is worthwhile mentioning that the power of revision has been concurrently conferred on the Sessions Judge and the High Court and when the remedy of revision is available before both the Courts, nothing prevents the accused against whom summons have been issued after taking cognizance of the offence, to invoke the revisional jurisdiction of Sessions Judge.
25. Accordingly, my answer to the question posed at the out-set is that an order taking cognizance and directing for issuance of process is not an interlocutory order and is subject to the revisional jurisdiction and bar put under Section 397(2) of the Code does not come into way. Resultantly any judgment taking a contrary view shall be deemed to have been over-ruled and not laying down the correct law.
26. In the result, the application is allowed, the order dated 2.4.2005 passed by the Sessions Judge, West Champaran, Bettiah in Cr. Revision No. 81of 2005 is set aside and the matter is remitted back to him for reconsideration on merit.
27. Let a copy of this be forwarded to all the District and Sessions Judges for onword communication.