Rajasthan High Court - Jaipur
Jarnail Singh vs State Of Rajasthan on 3 June, 1991
Equivalent citations: 1992CRILJ810, 1991(1)WLN476, 1991(2)WLN577
JUDGMENT R.S. Verma, J.
1. The question referred to this bench is:
Whether Under Section 397(2), Cr. P.C. the expression 'interlocutory order' covers the framing of the charge during the trial or not.
2. The petitioner before us is accused of sheltering Pakistani nationals in contravention of Sections 13 and 14 of the Foreigners Act. Suffice for the purposes of this discussion that the learned trial Magistrate, after having taken due cognizance of the aforesaid offences, framed charge against the, petitioner for the aforesaid offences on 22-4-89. The petitioner pleaded not guilty and claimed trial. However, he filed a revision petition before this Court Under Section 397, Cr. P.C. against the order framing the charge. The office raised a preliminary objection regarding the maintainability of the revision petition. The matter was placed before a learned single Judge of this Court. Learned counsel for the petitioner urged before the learned single Judge that the objection had been raised by the office on account of a Division Bench decision of this Court in Nemichand v. State of Rajasthan 1988, Cri LR (Raj) 148. He contended that the Division Bench Judgment was based on the judgment of the Supreme Court in V.C. Shukla v. State AIR 1980 SC 962 : 1980 Cri LJ 690. He further pointed out that V. C. Shukla's case was decided on the basis of the provisions of the Special Courts Act, 1979 and the ratio laid down in that case could not apply to interpretation to the provisions of Section 397, Cr. P.C. He referred to Amarnath v. State of Haryana AIR 1977 SC 2185 : 1977 Cri LJ 1891 and Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 : 1978 Cri LJ 165 and urged that Nemichand's case required reconsideration. Learned single Judge agreed with this contention and directed the matter to be placed before Hon'ble the Chief Justice for constituting a larger bench to decide the question reproduced above. Hon'ble the Chief Justice has referred the question to this bench for decision. This is how the matter has come up before us.
3. Since the matter was of vital importance and great significance, we issued notice to the learned Advocate General and the President, Bar Association, Jodhpur. Consequently learned Additional Advocate-General Shri J. P. Joshi and learned Public Prosecutor Shri K. L. Jasmatia have put in appearance. Shri R. K. Soni, Advocate has also intervened. We have heard the learned Counsel for the petitioner Shri N. L. Kukkar and the aforesaid advocates.
4. Section 397 of the Cr. P.C. reads as follows:--
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 Magistrate, 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 either of them.
A bare reading of this section goes to show that Sub-section (1) of this section empowers the High Court or any Sessions Judge to call for and examine the record of any inferior Criminal Court situate within its or his local jurisdiction for the purposes specified in the said Sub-section. Sub-section (2) of the Section provides a rider to Sub-section (1) and provides that 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. Sub-section (3) is not material for deciding the question referred to us.
5. Now, the expression 'interlocutory order' has not been defined in the Code of Criminal Procedure. However, the expression 'interlocutory order' has been subject matter of legal interpretation. Likewise, the expression 'final order' has also been subject matter of legal interpretation. To understand the implications of one, we shall have to keep in mind the implications of the other. Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. However, we shall have to see if in relation to Section 397(2), Cr.P.C., such an interpretation and meaning can be given to the expression 'interlocutory order'.
6. The expression 'final order' was interpreted in Salaman v. Warner (1891) 1 QB 734. Lord Esher M. R. discussed the meaning of the expression 'final order' in these terms:--
If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules if, it is final. On the other hand, if their decision if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.
In Bozson v. Altrincham Urban District Council (1903) 1 KB 547, Lord Alverstone, C.J. held that real test for determining the question was : "Does the judgment or order, as made, finally dispose of the rights of the parties?"
7. The expression 'final order' as occurring in Section 205 of the Government of India Act, 1935 was the subject matter of interpretation in S. Kuppuswami Rao v. The King AIR 1949 FC 1 : 1948 (49) Cri LJ 625. By the aforesaid section, the Federal Court was empowered to hear appeals against judgment, decree of 'final order' of a High Court in British India, provided that the other conditions specified in the section were fulfilled. After surveying the law on the subject, both British and Indian, their Lordships held that "the 'final order' must be an order which finally determines the points in dispute and brings the case to an end". It was further pointed out that such an order could not cover a preliminary or interlocutory order. This very expression viz. 'final order' came to be interpreted in a five bench judgment of the Apex Court in Mohanlal Maganlal Thakkar v. State of Gujarat AIR 1968 SC 733 : 1968 Cri LJ 876. There the question arose with regard to interpretation of Article 134(1)(c) of the Constitution of India which provides for an appeal to the apex Court from "any judgment, 'final order'" or sentence in a criminal proceeding of a High Court. "Hon'ble Justice Shelat, as he then was, speaking for himself and the majority consisting of Hon'ble Wanchoo, C.J. and Vaidialingam, J. surveyed the various British and Indian cases on the subject and observed :--
(11) The aforesaid discussion leads to the conclusion that when the Magistrate ordered the filing of the complaint against the appellant, the parties to that controversy were the State and the appellant, and the controversy between them was whether the appellant had committed offence charged against him in that complaint. The appeal filed by the appellant before the Additional Sessions Judge was against the order filing the complaint, the controversy therein raised being whether the Magistrate was justified in filing it, that is to say, whether it was expedient in the interest of justice and for the purpose of eradicating the evil of false evidence in a judicial proceedings before the Court. The controversies in the two proceedings, were thus distinct though the parties were the same. When the Additional Sessions Judge held that the complaint was justified in respect of the offence under Section 205 read with Section 114 and was not justified in respect of the other offences his judgment in the absence of a revision by the State against it finally disposed of that part of the controversy, i.e. that the complaint in respect of offences under Sections 467 and 468 read with Section 114 was not justified. When the appellant filed revision in respect of the complaint for the remaining offence under Section 205 read with Section 114, the single Judge of the High Court dismissed that revision. His order of dismissal disposed of that controversy between the parties and the proceeding regarding that question as to whether the complaint in that regard was justified or not was finally decided. As observed in (1966) 3 SCR 198 : AIR 1966 SC 1445 (supra), the finality of that order was not to be judged by co-relating that order with the controversy in the complaint, viz., whether the appellant had committed the offence charged against him therein. The fact that the controversy still remained alive is irrelevant. It must consequently be held that the order passed by the High Court in the revision filed by the appellant was a final order within the meaning of Article 134(1)(c).
8. We may here state that in most of these rulings it was recognized that the expression 'judgment or final order' has the same connotation both in civil as well as criminal law. Indeed no distinction was made on this score, while interpretating the expression. We may also point out that these rulings did not have occasion to deal directly with the expression 'interlocutory order' and it was incidentally that they touched upon the question, as to how would a 'final order' be different from an 'interlocutory order'.
9. To determine whether an order was final or interlocutory, the following four tests were recognised in some of the cases viz.
(1) Was the order made upon an application such that a decision in favour of the either party would determine the main dispute?
(2) Was it made upon an application upon which the main dispute could have been decided?
(3) Does the order as made determine the dispute?
(4) If the order in question is reserved would the action have to go on?
Now, the first test was applied in Salaman's case (1891 (1) QB 734). In Shubrook v. Tufnell (1882) 9 QBD 621, the order did not decide the matter in litigation but referred it back to the arbitrator, though on the application on which it was made, a final determination might have been made. The order was held to be final. This was approved in Bozson's case (1903) (1) KB 547). In the latter judgment, it was, however, recognized that 'an interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals and in this way, it may be final.
10. Mohanlal's case (1968 Cri LJ 876) after surveying the case law recognizes (para 9):
Even an order ex facie interlocutory in character has been held to be final if it finally disposed of the proceeding though the main controversy between the parties remained undisposed of. An illustration of such a case is to be found in the Sate of Orissa v. Madan Gopal 1952 SCR 28 : AIR 1952 SC 12. The dispute there was whether the State Government had the power to annul or cancel leases granted by the ex-proprietor whose territory had under the agreement of merger merged in the Union Territory and by reason of Section 4 of the Extra Provincial Jurisdiction Act, 1948 was administered by the State of Orissa. The respondents gave notice to the State Under Section 80 of the Code of Civil Procedure but apprehensive that before the prescribed period expired, the State might annul their leases filed a writ petition. The High Court did not decide the dispute but granted a mandamus restraining the Government from taking action until the proposed suits were filed. In an appeal against that order the State contended that the order was not final as it was for an interim relief and t he dispute between the parties remained to be determined in the proposed suits. Though the order had not determined the rights of the parties, this Court negatived the contention and held that the order was final "in view of the fact that with these orders the petitions were disposed of finally and nothing further remained to be done in respect of the petitions.
11. Now, we may deal with the decisions, which have directly interpreted the expression 'interlocutory order'. In Amarnath's case (1977 Cri LJ 1891), the FIR was lodged against a number of persons including the appellants. The police, after due investigation challenged some of the accused persons but submitted a final report against the appellants. The Judicial Magistrate accepted the final report submitted against the appellants and set them at liberty. The complaint filed a revision petition against the said order of the Judicial Magistrate but did not succeed and the revision petition was dismissed. Not deterred by dismissal of the revision petition, the complainant filed a regular complaint before the Judicial Magistrate. Learned Magistrate examined the complainant and dismissed the complaint. The complainant went in revision against this dismissal of complaint to court of Sessions, which accepted the revision petition, set aside the dismissal of the complaint and directed further enquiry into the complaint. The learned Magistrate without making any such further enquiry straight way issued summons to the appellants in a mechanical mariner. The appellants challenged this order by tiling a revision petition Under Section 397, Cr. P.C. read with Section 482, Cr. P.C. The High Court dismissed this petition at the threshold holding that the order of the Judicial Magistrate was an 'interlocutory order' and as such a revision against it was barred by virtue of Section 397(2), Cr. P.C. The High Court further held that where remedy by way of revision was barred, the inherent powers of the court would not be available to defeat the bar contained in Section 397(2). Cr. P.C. The appellants then approached the apex Court. The apex Court affirmed the view of the High Court that where a revision petition was barred, by virtue of Section 397(2), Cr. P.C. the bar could not be defeated by invoking inherent powers of the Court. However, on the first question, the apex court did not agree with the High Court that the order of the Judicial Magistrate was an interlocutory order within the meaning of Section 397(2), Cr. P.C. Their Lordships then went into the history of enactment of Section 397(2), Cr. P.C. and observed :--
4. So far as the second plank of the view of the learned Judge that the order of the Judicial Magistrate in the instant case was an interlocutory order is concerned, it is a matter which merits serious consideration. A history of the criminal legislation in India would manifestly reveal that so far the Code of criminal Procedure is concerned both in the 1898 Code and 1955 Amendment the widest possible powers of revision had been given to the High Court Under Section 435 and 439 of those Codes. The High Court could examine the propriety of any order whether final or interlocutory-passed by any subordinate Court in a criminal matter. No limitation and restriction on the powers of the High Court were placed. But this Court as also the various High Courts in India, by a long course of decisions, confined the exercise of revisional powers only to cases where the impugned order suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse. These restrictions were placed by the case law, merely as a rule of prudence rather than a rule of law and in suitable cases the High Courts had the undoubted power to interfere with the impugned order even on facts. Sections 435 and 439 being identical in the 1898 Code and 1955 Amendment insofar as they are relevant runs thus :
435. (1) The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his 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....
439.(1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 or on a court by Section 338, and may enhance the sentence, and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
In fact the only rider that was put Under Section 439 was that where the Court enhanced the sentence the accused had to be given an opportunity of being heard.
5. The concept of an interlocutory order qua the revisional jurisdiction of the High Court, therefore, was completely foreign to the earlier Code. Subsequently it appears that there had been large number of arrears and the High Courts were flooded with revisions of all kinds against interim or interlocutory orders which led to enormous delay in the disposal of cases and exploitation of the poor accused by the affluent prosecutors. Sometimes interlocutory orders caused harassment to the accused by unnecessarily protracting the trials. It was in the background of these facts that the Law Commission dealt on this aspect of the matter and in the 14th and 41st Reports submitted by the Commission which formed the basis of the 1973 Code the said Commission suggested revolutionary changes to be made in the powers of the High Court. The recommendations of the Commission were examined carefully by the Government, keeping in view, the following basic considerations :
(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and
(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.
This is clearly mentioned in the Statement of Objects and Reasons accompanying the 1973 Code. Clause (d) of Para 5 of the Statement of Objects and Reasons runs thus:
the powers of revision against interlocutory orders are being taken away, as it has been found to be one of the main contributing factors in the delay or disposal of criminal cases;
Similarly, replying to the debate in the Lok Sabha on Sub-clause (2) of Clause 397, Shri 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.
Thus it would appear that Section 397(2) was incorporated in the 1973 Code with the avowed purpose of cutting out delays and ensuring that the accused persons got a fair trial without much delay and the procedure was not made complicated. Thus the paramount object in inserting this new provision of Sub-section (2) of Section 397 was to safeguard the interest of the accused.
12. Their Lordships then proceeded to interprete Section 397(2), Cr. P.C. In the aforesaid historical setting and observed :
6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub-section (2) of Section 397 of the 1973 Code may be extracted thus:
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.
The main question which falls for determination in this appeal is as to 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 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 of 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 proceedings, 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 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 applied -- by us)
7. In Central Bank of India v. Gokak Chand AIR 1967 SC 799, this Court while describing the incidents of an interlocutory order, observed as follows:
In the context, of Section 38(1), the words, "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties, In a pending proceedings, the Controller may pass many interlocutory orders Under Sections 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties.
The aforesaid decision clearly illustrates the nature and incidents of an interlocutory order and the incidents given by this Court constitute sufficient guidelines to interpret the connotation of the words "interlocutory order" as appearing in Sub-section (2) of Section 397 of the 1973 Code.
8. Similarly in a later case in Mohanlal Maganlal Thacker v. State of Gujarath AIR 1968 SC 733 : 1968 Cri LJ 876, this Court pointed out that the finality of an order could not be judged by correlating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. In that case this Court held that even though it was an interlocutory order, the order was a final order.
9. Similarly in Baldevdas v. Filimistan Distributors (India) Pvt. Ltd. AIR 1970 SC 406, while interpreting the import of the words "case decided" appearing in Section 115 of the Code of Civil Procedure, this Court observed as follows;
A case may be said to be decided, if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy;
Apart from this it would appear that under the various provisions of the Letters Patent of the High Court in India, an appeal lies to a Division Bench from an order passed by a Single Judge and some High Courts have held that even though the order may appear to be an interlocutory one where it does decide one of the aspects of the rights of the parties it is appealable. For instance, an order of a single Judge granting a temporary injunction was held by a Full Bench of Allahabad High Court in Standard Glass Beads Factory v. Shri Dhar AIR 1960 All 692 as not being an interlocutory order having decided some rights of the parties and was, therefore, appealable. To the same effect are the decisions of the Calcutta High Court in Union of India v. Khetra Mohan Banerjee AIR 1960 Cal 190, of the Lahore High Court in Gokal Chand v. Sanwal Das AIR 1920 Lahore 326, of the Delhi High Court in Begum Aftab Zamani v. Lal Chand Khanna AIR 1969 Delhi 85 and of the Jammu and Kashmir High Court in Har Prashad Wali v. Naranjan Nath Matto AIR 1959 J & K 139.
Then, their Lordships proceeded to consider if the impugned order of the learned Judicial Magistrate could be called an interlocutory order. They observed (1977 Cri LJ 1891 at p. 1896):
So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceeding pending against them. It was only the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of their was not involved by the impugned order. It is difficult to hold the impugned order summoning the appellants straightway was merely an interlocutory order which could not be revised by the High Court under Sub-sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had proceeded was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate's passing an order prima facie in a mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellant. If the appellants were not summoned, then they could not have faced the trial to all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial.
11. For these reasons, the order of the Judicial Magistrate, First Class, Karnal dated November 15, 1976 cannot be said to be an interlocutory order and does not fall within the mischief of Sub-section (2) of Section 397 of the 1973 Code and is not covered by the same. That being the position, a revision against this order was fully competent Under Section 397(1) or Under Section 482 of the 1973 Code because the scope of both these sections in a matter of this kind is more or less the same.
It was thus held that an order of moment, taking away a valuable right of the appellants could not be characterised as an "interlocutory order" within the meaning of Section 397(2) Cr. P.C.
13. Now, we may examine the decision rendered in Madhu Limaye's case (1978 Cri LJ 165), which again directly deals with the interpretation of the expression "interlocutory order" occurring in Section 397(1), Cr. P.C. In that case, the appellant is said to have published defamatory statement concerning a Minister of the respondent State. The State Government after according due sanction prosecuted the appellant for offence Under Section 500, IPC in the Court of Sessions by getting a complaint lodged Under Section 199(2), Cr. P.C. The appellant challenged the legality of his prosecution before the learned Sessions Judge on certain grounds. Learned Sessions Judge negatived the challenge and framed a charge for offence Under Section 500, IPC against the appellant. Aggrieved, the appellant filed a revision petition Under Section 397, Cr. P.C. before the High Court. The High Court dismissed the revision petition at the threshold on the preliminary ground that the revision being directed against an interlocutory order was not maintainable. The appellant approached the Supreme Court and contended that the impugned order was not an interlocutory one and the High Court was not justified in dismissing the revision petition. The Supreme Court considered this contention and while doing so examined the ratio of Amarnath's case (1977 Cri LJ 1891) and observed :
9. In most of the cases decided during several decades the inherent powers of the High Court has been invoked for the quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance of issuing processes or framing charge on the grounds that the court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court. In the background aforesaid, we proceed to examine as to what is the correct position of law after the introduction of a provision like Sub-section (2) of Section 397 in the 1973 Code.
10. As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding, is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court." But, if we were to say that the said bar is not to operate if the exercise of the inherent power at all it will be setting at naught one of the limitations powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operated only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into paly, there being no other provision in the code for the redress of the grievance of the aggrieved party. But, then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceedings initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction then the trial of the accused will be without jurisdiction and even after his accquittal second trial, after proper sanction will not be barred on the doctrine of autrefois acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order does is stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.
14. Their Lordships proceeded to say as follows:--
12. Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:
... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.
In para 1607 it is said :
In general a judgment or order which determines the principal matter in question is terms "final". In para 1608 at pages 744 and 745 we find the words :
An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment, are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.
13. In S. Kuppuswami Rao v. The King 1947 ECR 180 : 1948 (49) Cri LJ 625, C.J. delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. Lord Esher M. R. said in Salaman v. Warner (1891) 1 QB 734:
If their decision, whichever may it is given, will, if it stands, finally dispose of the matter in dispute I think that for the purpose of there rules it is final. On the other hand of their decision, if given in one way will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.
To the same effect are the observations quoted from the judgments of Fry L.J. and Lopes L.J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time there was no bar like Section 397(2) was not a "final order" within the meaning of Section 205(1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceedings could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied, in interpreting the words "interlocutory in interpreting the words "interlocutory order" occurring in Section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. In what cases then the high Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal Court? It is circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? Such cases will be very few and far between. It has been pointed out repeatedly, vide for example, The River Wear Commissioners v. William Adamson (1876-77) 2 AC 743 and R.M.D. Chamarbaugwalla v. The Union of India AIR 1957 SC 628, that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the Legislature. On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it puts a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the Legislature was not to equate the express "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kappuswami's case (1948 (49) Cri LJ 625) (supra), but, yet it may not be an interlocutory order pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purpose of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catelogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be called out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of Sub-section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course."
(Emphasis supplied -- by us)
15. Their Lordships then examined the case of Mohanlal Magan Lal (supra) as stated:
15. In Amar Nath's case (1977 Cri LJ 1891), reference has been made to the decision of this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat AIR 1968 SC 733: 1968 Cri LJ 876. After an inquiry Under Section 476 of the 1898 Code an order was made directing the filing of a complaint against the appellant. It was affirmed by the High Court. The matter came to this Court on grant of a certificate under Article 134(1)(c). A question arose whether the order was a "final order" within the meaning of the said constitutional provision. Shelat, J. delivering the judgment on behalf of himself and two others was given by Bachawat, J. on behalf of himself and one other learned Judge. In the majority decision four tests were culled out from some English decisions. They are found enumerated at page 737. One of the tests is "if the order in question is reversed would the action have to go on?" Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. Applying the test of Kuppuswami's case AIR 1949 FC 1 such an order will not be a final order. But applying the fourth test noted at page 688 in Mohan Lal's case AIR 1968 SC 733 it would be a final order. The real point of distinction, however, is to be found at page 738 in the judgment of Shelat, J. The passage runs thus:
As observed in Ramesh v. Gendalal Motilal Patni AIR 1966 SC 1445 the finality of that order was not to be judged by correlating that order with the controversy in the complaint, viz., whether the appellant had committed the offence charged against him therein. The fact that that controversy still remained alive is irrelevant. The majority view is based upon the distinction pointed out in the above passage and concluding that it is a final order within the meaning of Article 134(1)(c). While Bachawat, J. said at page 739 : "It is merely a preliminary step in the prosecution and therefore an interlocutory order". Even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in Mohan Lal's case in our judgment, undoubtedly, 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 as 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 will surely be not an interlocutory order within the meaning of Section 397(2) (Emphasis ours)
16. Their Lordships further observed:
17. 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 (1948 (49) Cri LJ 625) and in holding that an order of the kind under consideration being not a final order must necessarily 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 face of it? The Legislature left the power to order further inquiry intact in Section 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 setting 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.
17. Consequently, their Lordships accepted the appeal, set aside the judgment and order of the High Court and remitted the case to dispose of the petition of the appellant on merits. The principle deducible from this ruling is that the plea of an 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) and the accused shall be entitled to invoke the revisional jurisdiction of the Court of Sessions or for that matter of the High Court, to show that his plea if accepted will conclude the matter qua the accused.
18. Now, we may consider V. C. Shukla's case (1980 Cri LJ 690) upon which learned Addl. Advocate General has placed great reliance and upon which Nemichand's case (1988 Cri LR (Raj) 148) has proceeded. In V. C. Shukla's case a Special Judge Justice Joshi directed charge to be framed against the appellant for certain offences triable by the learned Judge. The trial was governable by the provisions of the Special Courts Act, 1979. Section 11(1) of the Act conferred a right on an accused to file appeal against any judgment, sentence or order, not being 'interlocutory order', of a special Court, to the Supreme Court, both on facts and law. The appellant, aggrieved by the framing of the charge, filed an appeal before the apex court, contending that the order framing charge was not an interlocutory order within the meaning of Section 11(1) of the said Act and hence he was entitled to file an appeal as of right. A five Judge Bench of the apex Court heard the appeal. Hon'ble Justice Fazal Ali delivered the leading judgment on behalf of himself and Hon'ble A. P. Sen, J. Hon'ble D.A. Desai J. recorded a concurring judgment. By majority Judges, it was held that in view of the scheme of Special Courts Act, an order framing charge was an interlocutory order and no appeal lay to the Supreme Court. Hon'ble P. N. Singhal, J. delivered a dissenting judgment and held that in accordance with the ratio in Amarnath's case (1977 Cri LJ 1891) (supra) an order framing charge cannot be said to be an interlocutory order. Learned Addl. Advocate General contends that Section 11(1) of the Special Courts Act is in pari materia with Section 379(2), Cr. P.C. and hence notwithstanding ratio in Amarnath's case (supra) and Madhu Limaye (1978 Cri LJ 165) (SC) (supra) we should rule that an order framing charge is an interlocutory order within the maning of Section 397(2), Cr. P.C. He has placed reliance upon certain passages of the judgments of Hon'ble Fazal Ali and D.A. Desai, JJ. As against this, Mr. N. L. Kukkad contends that the majority judgments were in fact recorded in the statutory setting of the provisions of the Special Courts Act and hence Amarnath's case (supra) and Madhu Limaye's case (supra) should prevail.
19. We have carefully perused the judgments rendered in V. C. Shukla's case (1980 Cri LJ 690) (supra) and we are of considered opinion that interpretation placed on the expression "interlocutory order" occurring in Section 11(1) of the Special Courts Act, cannot be applied to interpretation of the identical expression occurring in Section 397(2), Cr. P. C. We would presently show why this is not possible. In that case, Shri P. R. Mridul for the appellant relying upon Amarnath's case (1977 Cri LJ 1891) (supra) and Madhu Limaye's case (1978 Cri LJ 165) (supra) urged that Section 397(2) of the Criminal Procedure Code was in pari materia with Section 11(2) of the Special Courts Act and hence the same interpretation should be placed on the expression "interlocutory order" occurring in Section 11(2) of the Special Courts Act, as was being given to this expression in relation to Section 397(2) of the Criminal Procedure Code. This contention of Shri Mridual was by necessary implication repelled by their Lordships, when they observed in the leading judgment delivered by Hon'ble Fazal Ali, J., as follows (at p. 698):
We might reiterate here even at the risk of repetition 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 because the bar contained in Section 397(3) of the Code would apply to a variety of cases coming up before the Courts not only being offences under the Penal Code but under numerous Acts. If, there fore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, 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. The same, however, in our opinion, could not be said of the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest desptach and speediest disposal.
20. Their Lordships were quite alive to the fact that provisions of Special Courts Act were enacted to deal with specified cases only while Criminal Procedure Code was meant to deal with a variety of cases, not only arising under the Indian Penal Code but under numerous Acts. This is why their Lordships emphasised that the provision containing the bar to revision (i.e. Under Section 397(2), Cr. P.C.) should be confined within the four corners of the spirit and letter of law. We may state that the interpretation placed on the expression 'interlocutory order' occurring in Section 11 (1) of the Special Courts Act by their Lordships in this case derived its hue and complexion from the special provisions of the Special Courts Act. Their Lordships were at pains to explain the scheme of the Special Courts Act by referring in details to the various provisions of the Act, which was intended to achieve a special object. Their Lordships specifically alluded to the following special feature of the Act :--
(1) That the Act makes a distinct departure, from the trial of ordinary offences by criminal courts in that the trial of the offences is entrusted to a very high judicial dignitary who is a sitting Judge of the High Court to be appointed by the Chief Justice concerned on the recommendations of the Chief Justice of India. This contains a built in safeguard and a safety valve for ensuring the independence of judiciary on the one hand and a complete fairness of trial on the other. In appointing the Special Judge, the Government has absolutely no hand or control so that the Special Judge is appointed on the recommendations of the highest judicial authority in the country, viz., the Chief Justice of India. This would naturally instill great confidence of the people in the Special Judge who is given a very elevated status.
(2) Secondly, whereas in ordinary cases the matter is straightway brought to the Court after the investigation is completed, the Act requires certain preliminary safeguards before the matter is placed before the Special Court. In the first place, the allegations made against the accused have been scrutinised by a High Powered Commission, presided over by Mr. Justice Shah, a retired Judge of the Supreme Court, as indicated by the Home Minister in his speech while introducing the Bill, Secondly, the matter does not rest there but a thorough investigation has been made not by the ordinary police but by the C.B.I. Thridly, after the investigation is made, the matter is placed before the Central Government which makes a declaration after being satisfied about existence of prima facie evidence of the Commission of an offence alleged to have been committed by an accused. It is only after such a declaration is made that the matter is brought before the Special Court, designated by the Central Government. It thus appears that before a case comes to the Court a three-tier system has already been adopted which eliminate any possibility of miscarriage of justice or any element of unfairness or foul play. Furthermore, although the Special Judge functions as a Sessions Judge for the purposes of the trial and follows a procedure provided for the trial of warrant cases, the fact remains that the Judge is a high judicial dignitary, being a sitting Judge, not subordinate in any way to the Government. The Special Judge appointed, therefore, is a very experienced judicial officer who must be presumed to act in an extremely just and equitable manner keeping himself alive to the rules of natural justice and fair play.
After alluding to the aforesaid special features, their Lordships observed [1980 Cri LJ 690, Para 14] :--
Another important feature of the Act is that unlike other cases, an appeal against the decision of a Special Court lies to the highest Court of the country, namely, the Supreme Court, and the appeal lies as a matter of right and both on facts and on law. In other words, any judgment rendered by the Special Court is to be examined by the highest Court of the country which is bound to consider the diverse aspects of the material evidence and findings given by the Special Court without being fettered by any legal or factual restriction. Thus, an analysis of the aforesaid features clearly reveals that no accused can have any genuine grievance against the fairness of the trial that is meted out to him by the Act. If any error of fact or law is committed by the Special Judge that can be corrected by this Court.
Their Lordships went on to observe (Para 17):
The aforesaid observations, therefore, clearly show that the heart and soul of the Act is speedy disposal and quick dispatch in the trial of these cases. It is, therefore, manifest that the provisions of the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case may be delayed. Indeed if this be the avowed object of the Act, could it have been intended by the Parliament that while the Criminal Procedure Code gives a right of revision against an order which, though not purely interlocutory, is either intermediate or quasi final, the Act would provide a full-fledged appeal against such an order. If the interpretation as suggested by the counsel for the appellant is accepted, the result would be that this Court would be flooded with appeals against the order of the Special Court framing charges which will impede the progress of the trial and delay the disposal of the case which is against the very spirit of the Act. We are of the opinion that it was for this purpose that a non obstante clause was put in Section 11 of the Act so as to bar appeals against any interlocutory order whether it is of an intermediate nature or is quasi final. The Act applies only to specified number of cases which fulfil the conditions contained in the provisions of the Act and in view of its special features, the liberty of the subject has been fully safeguarded by providing a three-tier system as indicated above.
21. Then their Lordships negatived the contention of Mr. Mridul that interpretation placed on the expression 'interlocutory order' occurring in Section 397(2), Cr. P. C. should be given to the identical expression in Section 11(1) of the Special Courts Act by stating (Para 18):
Then we come to Section 11(1) which has already been extracted. The non obstante clause which starts with the words "notwithstanding anything in the Code" excludes appeals from any interlocutory order of a Special Court. The reason for this exclusion is not far to seek. In the first place, such an exclusion is fully consistent with the object of the Act, viz. to secure the quickest dispatch and an expeditious disposal of the case so as to cut down all delays which may be caused by providing for appeals against interlocutory orders also. As the non obstante clause expressly excludes the provisions of the Code of Criminal Procedure, we cannot call into aid the provisions of Section 297(2) of the Code which would amount to frustrating the very object which Section 11 seeks to advance. Mr. Mridula realising the force of the non obstante clause has submitted a very attractive and ingenious arguments. In the first place, he submitted that as the Act does not provide for any revision against intermediate or quasi final orders, and as the object was to give a very fair trial to the accused, hence instead of a revision, an appeal has been provided. We are, however, unable to agree with this argument, which is not at all borne out by the plain language employed in Section 11(1). When the Act excludes the Code then it is obvious that it excludes an appeal against any type of an interlocutory order. The absence of revision is more than compensated by giving the accused a right of an appeal against any judgment or order of the Special Judge as of right and open on facts and law. There is one more reason why the power of revision has been excluded. The trial is held by a sitting High Court Judge who also would have the power of revision if he was sitting in a High Court. In these circumstances, it must be presumed that whenever a Special Judge passes any interlocutory order or an intermediate order like framing of charges, he would do so only with full and complete application of his mind and considering the various principles and guidelines indicated by this Court in several decisions, some of which have been discussed above, and, therefore, it would not be in keeping with the dignity, decorum and status of the Special Judge to provide for an appeal even against such an order which he is supposed even against such an order which he is supposed to pass with full application of mind and due deliberation.
Their Lordships in the leading judgment summed up the position thus:
The summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceedings, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in Section 11(1) of the Act.
Their Lordships in the leading judgment finally stated:
On a true construction of Section 11(1) of the Act and taking into consideration the natural meaning of the expression 'interlocutory order', there can be no doubt that the order framing charges against the appellant under the Act was merely an interlocutory order which (Emphasis ours) neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami case the order impugned was undoubtedly an interlocutory order and applying the non obstante clause, the position is that the provisions of the Code of Criminal Procedure are expressly excluded by the non obstante clause and therefore Section 397(2) of the Code cannot be called into aid in order to hold that the order impugned is not an interlocutory order. As the decisions of this Court in the case of Madhu Limaye v. State of Maharashtra 1978 Cri LJ 165 and Amar Nath v. State of Haryana 1977 Cri LJ 1891 were given with respect to the provisions of the Code, particularly Section 397(2), they were correctly decided and would have no application to the interpretation of Section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non obstante clause.
22. Learned Addl. Advocate-General drew our attention to certain passages in V. C. Shukla's case (1980 Cri LJ 690) (supra) which seemingly create an impression that framing of a charge was considered to be an interlocutory order even for purposes of Section 397(2), Cr. P. C. Admittedly, in V. C. Shukla, the matter had not come up before their Lordships for interpretation of expression 'interlocutory order' as occurring in Section 397(2), Cr. P. C. Their Lordships were not required to interprete the expression in the setting of the provisions of Section 397, Cr. P. C. at all. Rather, their Lordships interpreted the provision in the setting of the provisions of the Special Courts Act. Learned Addl. Advocate-General vehemently urged that the provisions of Section 397(2), Cr. P. C. and Section 11(1) of the Special Courts Act are in pari materia. We may readily observe that neither the two Acts nor the two provisions are in pari materia. In Code of Criminal Procedure, a power to hear appeal is distinct and different from a power to hear revision. Under the Special Courts Act, no provision was made for hearing revisions at all. Under the Code of Criminal Procedure both Court of Session and High Court hear revisions against orders of Magistrate. Under this provision, High Court hears revisions not only against the orders of Magistrate but also against orders of Session Judges etc. Under the Special Courts Act, the Presiding Judge is a very high dignitary, unlike Magistrate, Assistant Session Judges, Additional Session Judges and Session Judges. Hence, it is difficult to see that two provisions were in pari materia. The last observations quoted from V. C. Shukla point out in unmistakable terms that the expression that 'interlocutory order' occurring in Section 11(1) of the Special Court Act does not carry the special meaning which attaches to this expression Under Section 397(2), Cr. P. C.
23. Learned Addl. Advocate-General invited our attention to some of the passage occurring in the concurring judgment of Hon'ble D. A. Desai, J., in V. C. Shukla in support of the contention that expression 'interlocutory order' was interpreted by the apex Court generally and was not confined to its interpretation in the setting of the Special Courts Act. However, we find that Hon'ble D. A. Desai, J. himself prefaced his discussion with the observations:
It is, therefore, necessary to ascertain the true import of what can be styled as an interlocutory order which would not be appealable under Section 11 of the Act.
This prefatory statement gives Sufficient indication in what perspective, Hon'ble D. A. Desai, J. viewed the entire controversy. His Lordship summed up his discussion by saying thus:
In view of the conclusion that the order framing a charge is an interlocutory order within the meaning of Section 11(1), the appeal against such an order is incompetent in view of the provision contained in Section 11(2).
24. Learned Addl. Advocate-General vehemently urged that an expression occurring in a statute should be given its ordinary and natural meaning. He placed reliance upon Navin Chandra Mafat Lal v. Commr. of Income-tax, AIR 1955 SC 58 and in Re Lily Isabel Thomas AIR 1964 SC 855 : 1964 (1) Cri LJ 724. We may say that this approach would be impermissible when the apex Court has already ruled that the expression occurring in Section 397(2), Cr. P. C. cannot be given its plain and natural meaning but in the setting of Section 397, Cr. P. C. it must be given a narrow and restricted meaning and the expression should be construed to mean orders of purely interim or temporary nature, which do not touch or decide the important rights or liabilities of the parties. Any order which substantially affects the right of the accused cannot be characterised as an 'interlocutory order' (See Mohanlal (1968 Cri LJ 876), Amarnath (1977 Cri LJ 1891) and Madhu Limaye (1978 Cri LJ 165) (supra).
25. Learned Addl. Advocate-General cited certain rulings before us which lay down the principles to be adopted in interpretation of statutes. In State of Assam v. Deva Prasad Barua AIR 1969 SC 831 and another/it was observed that words employed in a statute must be given their proper and plain meaning. However, in Deputy Chief Controller of Imports and Exports v. K.T. Kosalaram AIR 1971 SC 1283 : 1971 Cri LJ 1081, it was observed:
In our opinion dictionary meaning, however, helpful in understanding the general sense of the words, cannot control where the scheme of the statute or the instrument considered as a whole clearly conveys a slightly different meaning.
These observations would rather support our view that the ordinary meaning of the expression 'interlocutory order' need not be assigned to the expression as used in Section 397(2), Cr. P.C. 25-A. In J.K. Steel Co. Ltd. v. Union of India AIR 1970 SC 1173 it was held that Acts in pari materia may be taken together as framing one system and as interpreting and enforcing each other. We have already alluded to the discussion in V. C. Shukla (supra) which goes to show that Special Court Act and Criminal Procedure Code are not in pari materia. Hence this precedent also does not help us as all. Then he referred to Sirsilk Ltd. v. The Textile Committee AIR 1989 SC 317. In that case, the controversy was whether Rayon and Nylon yarn were artificial silk or 'filaments' and not 'fibres'. It was observed that the terms 'yarns, man made fibres, otherwise known artificial silk' had to be understood according to common commercial understanding and not in their scientific or technical sense. This ruling, thus, is not of much assistance in the present case. Lastly, reliance was placed upon F.S. Gandhi (dead) by L.Rs. v. Commr. of Wealth Tax (1990) 3 SCC 624 : AIR 1991 SC 1866 wherein it was held that where an expression has been interpreted by Courts in a particular manner and subsequently the legislature amends the provisions but retains the expression, same meaning must be given which had been put upon it earlier by the Courts. We entirely agree with this proposition but it can have no application when the expression has been used in a different statute, having a different scheme altogether.
26. Now we may consider Nemi Chand's case (1988 Cri LR (Raj) 148) (supra). In Nemichand's case, their Lordships did not take into consideration the vital factor that V. C. Shukla was decided in the back ground of the particular scheme of the Special Courts Act and that Act was not in pari materia with the Code of Criminal Procedure. Likewise, its Section 11 was not in pari materia with the, provisions of Section 397, Cr. P. C. Their Lordships did not take into consideration the fact that under the Special Courts Act, appeal was to go straight before the apex Court, while revisions under Code of Criminal Procedure could be heard both by the Sessions Judge and the High Court. Their Lordships deciding Nemi Chand's case did not take into consideration the vital fact that in V. C. Shukla (1980 Cri LJ 690), the apex Court chose to give its natural and ordinary meaning to the expression interlocutory order' but it did not overrule or even disagree with. Amarnath or Madhu Limaye that in harmonising Section 397(1) with Section 397(2), expression 'interlocutory order' had to be given a narrow meaning and this narrow meaning would not embrace orders of moment or orders that would touch or affect substantial or material rights of parties.
27. Their Lordships deciding Nemi Chand relied upon the following five tests to determine the character of an order viz., whether it was interlocutory or final:
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order.
(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order.
(3) that one of the tests generally accepted by the English Court and the Federal Court is to see if the order is decided in one way, then the proceedings would continue; because in our opinion, the term 'interlocutory order', in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi-final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order in as much as it finally decides the rights of the parties and puts as end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act worked serious injustice to the accused.
Their Lordships deciding Nemi Chand's case (1988 Cri LR (Raj) 148) did not consider the locus classicus in Amar Nath's case (1977 Cri LJ 1891) when it said 'but orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of trial cannot be said to be interlocutory so as to be outside the purview of the revisional jurisdiction of the High Court. 'Tests Nos. 2 and 3 extracted in Nemi Chand expressly run counter to the dicta in Madhu Limaye (1978 Cri LJ 165), wherein their Lordships of the apex Court said:
But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted or justified. If it were so it will render almost nugatory the revisional power of Sessions and/or High Court conferred on it by Section 397(1), Cr.P.C.
Hence, in our opinion, the tests have to be applied to cases where the expression 'interlocutory order' has been used to convey a plain and natural meaning but would not be appropriate to a situation where the expression has not been so used, but has been used in a narrow and restricted sense. In Madhu Limaye, it was pointed out expressly, "it appears to us that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order'." We may state that in V. C. Shukla (1980 Cri LJ 690), these dicta were neither dissented to, nor were overruled for the obvious reason that the aforesaid tests were given to judge the nature of 'interlocutory order' in its natural and ordinary sense and not in the narrow and restricted sense in which it was used in Section 397(2), Cr.P.C.
28. To our mind, in the context of Section 397(2), Cr.P.C. expression 'interlocutory order would not embrace orders, which are of moment and vitally affect the accused. In this context the test would be whether acceptance of the plea raised by the accused was capable of terminating the proceedings against him or not. It would be immaterial if the rejection of such plea does not by itself terminate the proceedings and after rejection the proceedings continue. We may envisage a case where the accused raised a plea that he cannot be tried for want of sanction required by law as condition precedent to the trial or a case where even if the prosecution story is accepted in its totality, no offence is made out or case that the accused had been previously tried on that very charge by a competent court and had been acquitted. Now all these pleas are such, which if accepted would conclude the proceedings against the accused. We may here recall that in Mohanlal Maganlal Thakker (1968 Cri LJ 876) (supra), it was specifically ruled that finality of the order could not be judged by correlating that order with the controversy in the complaint. The fact that the controversy remained alive was immaterial. We would, therefore, say that a plea, which on its acceptance, was capable of terminating the trial itself, if rejected, would not constitute the order of rejection as an interlocutory order, but for the limited purposes of Section 397(2), Cr.P.C. would be an intermediate order partaking the character of a final order and would be revisable under Section 397(2), Cr.P.C.
29. Now, we may consider the nature of the order framing a charge. In a case instituted upon police report, a Magistrate is bound to discharge an accused, when he considers the charge against him to be 'groundless'. In cases instituted otherwise than on police report, a Magistrate is under a mandate to discharge the accused under Section 245, Cr.P.C. if he considers 'that no case has been made out which, if unrebutted warrant his conviction. Under Section 227 of the Code of Criminal Procedure a Court of Session shall discharge an accused if he considers that there is no sufficient ground for proceeding against him. Under Section 228, Cr.P.C. a court of Session may frame a charge only when the Judge is of the opinion that there is ground for presuming that the accused has committed an offence. Under all these provisions, framing of a charge tantamounts to telling the accused that a charge against him is prima facie made and he must face the trial. In other words, it is tantamount to rejection of the plea that accusation against him is groundless or no case has been made out against him, which if unrebutted would warrant his conviction or that there is no ground for presuming that he has committed an offence. In Century Spinning & Mfg. Co. v. State of Maharashtra 1972 SCC (Cri) 495 : 1972 Cri LJ 329, their Lordships said "order framing the charges does substantially affect the persons and it is not possible to countenance the view that the court must automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173, Cr.P.C. consider it proper to institute the case." In State of Karnataka v. L. Muniswamy 1977 SCC (Cri) 404 : 1977 Cri LJ 1125, we find echo of this very proposition. In V. C. Shukla, (1980 Cri LJ 690) (supra) also, this aspect was recognised in all the three judgments viz., the leading judgment, judgment of Hon'ble Desai, J. and judgment of Hon'ble P. N. Singhal, J. In the leading judgment, it was observed (para 8):
There can be no doubt that the stage of framing charges is an important stage and the court framing charge has to apply its mind judicially to the evidence or the material placed before it in order to make up its mind whether there are sufficient grounds for proceeding against the accused.
Hon'ble P. N. Singhal, J. in his dissenting judgment stated (para 53):
The order for the framing of charge is not an empty formality. It is of far-reaching consequences and it amounts to a decision that the accused is not entitled to discharge under Section 239, that there is, on the other hand ground for presuming that he has committed an offence...and that he shall be called upon to plead guilty to it and be convicted and sentenced on that plea or face trial. So an order for framing charge is a serious matter for the accused for he is thereafter no longer a free man.
Hon'ble Desai, J. also recognised this position though with reservations if the order framing charge was an interlocutory order or not. Thus, we have no hesitation in saying that an order framing a charge is an order of moment which by its necessary implication conveys that the accused is not entitled to a discharge and hence must either plead guilty or face trial. The order framing charge when viewed in this light takes away a valuable right of the accused to be discharged. We fail to see how such an order could be an interlocutory one for the purposes of Section 397(2), Cr.P.C. With huge arrears piling up and trial of criminal cases taking years and years even in courts of Magistrates, should not an accused be permitted to say that charge against him is groundless or the totality of facts pleaded against him do not constitute an offence or that the court trying him is not competent to proceed with the trial due to lack of proper sanction or some such impediment and that he should not be put to agony of a protracted trial but the court should determine at the earliest opportunity that he need not be tried at all. To our mind, an order which rejects such a plea is definitely an order of moment and cannot be said to be an interlocutory order for the purposes of Section 397(2), Cr.P.C.
30. Now, we may consider how an order framing charge impinges upon the guarantee of protection of life and liberty enshrined in Article 21 of the Constitution of India. The Article mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. 'Procedure established by law' has been judicially construed as meaning a procedure which is reasonable, fair and just. 'Procedure established by law' cannot be whimsical, arbitrary or fanciful because all these are antetheses to fairness and justness. In Maneka Gandhi v. Union of India (1978) 1 SCC 248 : AIR 1978 SC 597, this position was recognized and accepted rather forcefully. We have to view the provisions of Section 397, Cr.P.C. in light of this guarantee. Section 397(1), Cr.P.C. provides for judicial review of orders of subordinate courts by way of revision. Section 397(1) has been couched in the widest possible language. Provisions of Section 397(1) have to be construed liberally in favour of the citizen because it provides a protective and supervisory umbrella for reaching possible correctible injustice at the hands of subordinate courts. Section 397(2), Cr.P.C. is a fetter on this power and hence has to be confined to the letter and spirit of law. It was in this spirit that the various tests for formulating the true character of an order were modulated and power of supervision sought to be constricted by these tests was widened and amplified by ascertaining a third class of orders, namely, intermediate orders, which are neither interlocutory nor final 'Amarnath' Madhu Limaye (supra). Hence, we are of the view that tested on the touchstone of Article 21, Section 397(2), Cr.P.C. cannot be construed to include orders of moment, orders which take away a valuable right of the accused, though such orders may not conclude the entire controversy.
31. Mr. N. L. Kukkad urged vehemently that an order framing charge concludes the stage of enquiry preceding the trial and hence on this ground an order framing charge cannot be treated as an interlocutory one. He contends that proceedings prior to framing of the charge partake of the nature of an enquiry as defined in Section 2(g) of the Code of Criminal Procedure and the trial commences only after a charge is framed and the accused does not plead guilty or claims to be tried. He places reliance in this context on a Full Bench decision of this Court reported in Dalip Singh v. State of Rajasthan (1988) 2 Rajasthan LR 207: 1989 Cri LJ 600, wherein it was held that proceedings prior to framing of charge fell within definition of inquiry as envisaged in Section 2(g) of the Code of Criminal Procedure. This very view had been taken in an earlier decision of Kerala High Court reported in State of Kerala v. Achutha Panicker 1975 Ker LT 703. We find that a discharge, whether it be under Section 227 or under Section 239 or for that matter under Section 245, Cr.P.C. terminates the proceedings against the accused who has been discharged and in such event there arises no occasion for a trial, unless of course a superior court sets aside the order of discharge. As a postulate of fair trial under Article 21 of the Constitution, it can be urged that if a court of Sessions or High Court can set aside an order of discharge under Section 398, Cr.P.C., then such a court should also possess power to revise an illegal or improper order of refusal to discharge an accused, where such a discharge would be eminently justified. It seems unreasonable to us that in enacting Section 397(2), Cr.P.C., the legislature intended to take away the jurisdiction of the High Court or the court of Session, even in cases where framing of a charge by a subordinate court would be manifestly unjust, improper or perverse and continuance of a trial may amount to gross violation of the guarantee of a fair and reasonable trial as enshrined in Article 21 of the Constitution of India. We, therefore, agree with the contention that order framing a charge concludes the enquiry or the pre-trial proceedings and thus the order framing a charge is a final order qua the accused who claims to be discharged. There is much justification in the contention of Shri Kukkad that it is framing of a charge, whether it be under Section 228, Cr.P.C. or under Section 240, Cr.P.C. or under Section 245, Cr.P.C., which clothes the court concerned with jurisdiction to try the accused. Till this stage is reached, the court is competent to discharge the accused, terminating the prosecution itself. Hence, in our considered opinion, an order framing charge is not an interlocutory order qua Section 397(2) Cr.P.C.
32. Now, we may deal with the judgments of the various High Courts, which had occasion to deal with the question posed before us. Some of these judgments have been noticed in Navin Chandra's case (AIR 1955 SC 58) (supra) and we need not refer to all of them. In Bharti Ram v. State of Rajasthan 1983 Raj Cri C 216, one of us (Kanta Bhatnagar, J.) observed:
However, in certain cases ex facie there may appear no scope for any charge. Refusal to interfere in such matters may lead to unnecessary harassment to the persons charge-sheeted and, therefore, the revisional jurisdiction may be invoked". In Shankar v. State of Rajasthan 1979 WLN (UC) 334, the question of framing of charge did not arise, hence the decision is not of much help. Ashok Kumar v. State 1988 Cri LR (Raj) 319, did not examine the controversy in depth at all, hence it affords no assistance to us at all. United Flour Mills Co. Ltd. v. Corporation of Calcutta 1982 Cri LJ 578 (Cal) is Division Bench Judgment of the Calcutta High Court which lays down that an order going to the root of proceedings is not an 'interlocutory order'. In R.K. Goldstain v. Stanley Haque 1979 Cri LJ 338 (Him Pra), a Division Bench of Himachal Pradesh High Court held that an order framing charge was not an interlocutory order within the meaning of Section 397(2), Cr.P.C. It refers to Madhu Limaye and Amarnath but not to V. C. Shukla. Hence, this judgment also does not afford much assistance to us. The same view was taken in Mohanlal Devdan Bhai Chokshi, 1981 Cri LJ 454, by a Division Bench of the Bombay High Court. This decision took into consideration Madhu Limaye, Amarnath as also V. C. Shukla and held that interpretation of expression 'interlocutory order' in V. C. Shukla could not govern interpretation of this expression occurring in Section 397(2), Cr.P.C. The court after discussing the various authorities, cited before it reached to the same conclusion to which we have reached. A Division Bench of the Orissa High Court also held that 'order directing some persons to face a trial without proper application of mind cannot be held to be an 'interlocutory order' (vide Ramesh Samal v. Dhabi Mandal 1987 Cri LJ 759 (Orissa). In Avadh Narain Lal v. State of Uttar Pradesh 1986 Cri LJ 1233, a Division Bench decision of Allahabad High Court, the petitioner challenged his prosecution without proper sanction. The trial Judge negatived his plea. Before the High Court, it was contended that order rejecting such a plea was 'interlocutory order'. This plea was negatived and it was held that "the impugned order of the court below rejecting the plea of the applicant, which if accepted would conclude the proceedings against him, would not amount to an interlocutory order." That an order framing charge is not an interlocutory order was also held in Chandra Sen Ramnath Raikar v. Ramakant Yeshwant Kharangate 1980 Cri LJ NOC 7 (Goa). This very view was taken in Ram Chandra v. State of M.P. 1989 Cri LJ 162. Thus, we find that most of the High Courts share this view unanimously that order framing charge is not an interlocutory order qua Section 397(2), Cr.P.C.
33. We may here take note of an argument put forth by Shri K. L. Jasmatia that framing of charge was not an order at all and hence it did not attract the provisions of Section 397, Cr.P.C. at all. The argument deserves to be noticed only for the sake of rejection and is altogether devoid of substance. When a court frames a charge, the accused is specifically directed either to plead guilty or to claim trial. Such a direction is an order of the court in every sense of the term and it is not possible to countenance the view that framing of charge is not an order at all.
34. To sum up, we find that an order framing charge is an order of moment; it deprives the liberty of a citizen and puts him to jeopardy of a trial. Such an order finally rejects the plea of the accused that he is entitled to a discharge or that he is not liable to be tried. Such an order concludes the enquiry and the pre-trial proceedings against the accused. The order framing charge takes away a very valuable right of the accused. Hence, in our considered opinion, an order framing charge is not an interlocutory order within the meaning of Section 397(2), Cr.P.C. and such an order is amenable to the supervisory jurisdiction of the court of Session and the High Court under Section 397(1), Cr. P.C. We answer the reference accordingly.
35. Now, let the revision petition be listed before the learned single Judge for decision on merits.