Rajasthan High Court - Jaipur
Nemi Chand vs State Of Rajasthan on 11 December, 1987
Equivalent citations: 1988(1)WLN585
JUDGMENT S.N. Bhargava, J.
1. The present petition has been referred to this Bench as the learned Single Judge before whom this case came for decision, felt that the following important question of law is involved in this petition:
Whether an order framing charge against the accused persons is an interlocutory order within the meaning of Section 497(2), Cr.PC and if so, in what circumstances?
2. The Superintendent of Police, Special Police Establishment (Central Bureau of Investigation), Jaipur submitted a charge-sheet against the accused petitioner Nemi Chand in the court of Additional Chief Judicial Magistrate (C.B.I. Cases), Jaipur, who after hearing arguments, framed charge against the accused petitioner under Section 420, IPC. Being aggrieved by the order framing charge against the petitioner, the petitioner preferred a revision petition in the court of Sessions Judge, Jaipur District, Jaipur who rejected the same on the ground that no revision petition was maintainable under Section 397(2), Cr.PC as the order framing charge is an interlocutory order. Sessions Judge placed reliance on the decision of this court in P.P. Sharma v. State of Rajasthan 1984 Cr.LR Raj. 397 In this case, the petitioner had preferred miscellaneous petition under Section 482, Cr.PC. When the matter came up before the learned Single Judge, as earlier authority of this court in Bharti Ram and Ors. v. State of Rajasthan 1933 RCC 216 was cited wherein it was observed that revision petition was maintainable inspite of Section 397(2), Cr.PC. Learned Single Judge herself had taken the view that revision petition is maintainable as the order framing charges decides the rights of the parties, in as much as they are to face trial and as there was divergence of view between different Judges of this court, she thought it proper to refer the case to a larger Bench.
3. A general notice was issued to the members of the Bar about hearing of this petition.
4. We have heard learned Counsel for the parties as also other Advocates on the important question of law (quoted above) involved in this petition.
5. Prior to the coming into force of the Criminal Procedure Code, 1973 (here in after referred to as the 'New Code'), there was no statutory bar for entertaining revisions against the order framing charges. Section 397 of the New Code is reproduced below:
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 Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose 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 procceeding.
(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 other of them.
6. Section 397, Cr.PC (New Code) corresponds to Section 435 of the Criminal Procedure Code, 1898 (here in after referred to as the 'Old Code').
7. The legislative intention in enacting these provisions was not to limit the powers of the High Court sitting in revision except the provisions of Section 397(2) of the New Code and this new provision was introduced in order to prevent vexatious litigation by making application in revision against interlocutory orders passed by the trial court, with a view to delay the proceedings and harass the adversaries. The term 'interlocutory' has not been defined in the New Code and that is why, a lot of controversy has been raised as to what is an interlocutory order and what is a final order. The Criminal Procedure Code has got wide and diverse area of jurisdiction, in as much as it regulates the procedure of trial not only of the large number of offences contained in the Indian Penal Code but also in other Acts and Statutes where in also the Criminal Procedure Code applies and, therefore, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Code. Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In Kuppuswami Rao v. The King , Kania, C.J. after referring to several English decisions, Laid down a test that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be final order only if in either event, the action will be determined.
8. The Hon'ble Supreme Court in Madhu Limiya v. State of Maharashtra while commenting on this judgment observed that "in our opinion, if this strict test has to be applied 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 final order and hence will he an interlocutory order. Their Lordships further observed that the principle as to what is not a final order, must be an interlocutory order is neither warranted nor justified. If it were so, it will tender almost nugatory the revisional powers of the Sessions Court or the High Court conferred on it by Section 397(1) of the New Code. On such a strict interpretation only those orders would be revisable which are ordere passed on the final determination of the action but are not appealable under Chapter 29 of the Code. This does not seem to be the intention of the legislature when it retained the revisional powers of the High Court in terms identical to the one in the Old Code. Their Lordships further observed 'that real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order'. There may be an order passed during (he course of a proceeding, which may not be final in the sense noticed in Kuppuswami's case (supra) but it may not be an interlocutory order pure or simple. Same kinds of orders may fall in between the two. By a rule of harmonious construction, we think that the power in Sub-section (2) of Section 397 of the New Code is not meant, to be attracted to such kind of intermediate orders.
9. In a later decision in V.C Shukla v. State AIR 1980 SC 962, their Lordships of the Supreme Court after referring to the above observation in Madhu Limiya's case (supra), again observed that it would not be proper to treat the order framing charge as interlocutory order pure and simple. Even though the order may be intermediate, it could not be said to be interlocutory so as to bar the revisional jurisdiction of the High Court under Section 397(3) of the Code.
10. It was further observed that "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, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and 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.
11. It has also been observed by their Lordships that thus, the Federal Court in its decision seems to have accepted two principles; namely:
(1) that a final order has to be interpreted in contradistinction to an interlocutory order; and (2) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties.
12. The view taken in Kuppuswami's case (supra) was earlier, endorsed by the Supreme Court in the case of Mohan Lal Magan Lal Thacher v. State of Gujarat (1968) 2 SCR (85) where it was held that generally speaking a judgment or order which determines the principal matter in question is termed final order. It has further been observed that "the meaning of the two words 'final' and 'interlocutory' has, therefore, to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final...An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals...If the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive has yet to be tried in the ordinary way, no finality could attach to the order...This test was adopted in S.S. Kuppuswami Rao v. The King where the court also held that the words 'judgment' and 'order' have the same meaning whether the proceeding is a civil or a criminal proceeding. In Mohammed Amin Brothers Ltd. v. Dominion of India the Federal Court following its earlier decision adopted against the test viz., whether the judgment or order finally disposed of the rights of the parties."
13. The Hon'ble Supreme Court in an earlier judgment in Mohan Lal Magan Lal (supra) had occasion to consider the meaning of the word 'final order appearing under Article 134(1)(c) of the Constitution of India, and that judgment has also been considered in Madhu Limiya's case (supra), and it has been observed that an order directing filing of complaint after enquiry made under the provisions of the Code of 1973 similar to Section 476 of the 1898 Code, will not be an interlocutory order within the meaning of Section 397(2), order will be clearly revisable by the High Court. Mohan Lal's case (supra) was also considered in VC. Shukla's case (supra).
14. In Smt. Parmeshwari v. The State and Anr. , after noting the observations of the Supreme Court in Mohan Lal's case (supra), it has been held as under:
.. It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the inquiry or trial, against whom it is directed. As has been shown, the order of the Magistrate dated August 8, 1974 was not according to law and it adversely affected the appellant, who was not a party to the enquiry or trial, as it was solely directed against her. As is obvious, she could have no opportunity to challenge it after the making of the final order, and such a belated challenge would have been purposeless for it would have given her no relief. So in so far as the appellant is concerned; the order of the Magistrate could not be said to be an interlocutory order and the revisional courts erred in raising the bar of Sub-section (2) of Section 397 against it.
15. In the case Amar Nath and Ors. v. State of Haryana and Ors. , it has been observed as under:
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 & 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 sese and not in any broad or static 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 rights of the accused, or decides certain rights of the parties cannot be said to be as 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 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.
16. This case was considered and approved by the Supreme Court in Madhu Limiya's case (supra). Cases of Smt. Parmeshwari Devi Amar Nath and Madhu Limiya were again considered at length and commented upon in V.C. Shukla v. State . After considering numerous cases, their Lordships have formulated the following prepositions:
(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 an 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 suit able 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 works serious injustice to the accused.
17. We have to apply the aforesaid tests to find ont whether revision is maintainable or not.
18. In a latter decision, the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohatgi and Ors. had occasion to consider the scope, ambit and range of Section 482 Cr. PC vis-a-vis powers of revision under Section 397 Cr.PC and after considering earlier cases of the Supreme Court, including that of Madhu Limiya's case it was observed as under:
The scope, ambit and range of Section 482 is quite different from the powers conferred under Section 397(2) and there is no inconsistency between the two. Power under Section 482 is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. Section 482 confers a separate and independent power on the High Court alone to pass orders exdebito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused. The inherent power under Section 482 can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly.
It was also observed as under:
The proceedings against an accused in the initial stages can be quashed under Section 482. The test is that taking the allegations and the complaint as they are without adding or substracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its power, under Section 482, Cr.PC.
19. Very recently, the Supreme Court had occasion to consider the scope of revisional jurisdiction of the High Court in A.K. Subbaih and Ors. v. Stale of Karnataka & Ors. 1987 (3) (SVLR) (CR 93) wherein relying on Ram Kishan Rohatgi's case (supra) it has been observed as under:
It is. therefore, clear that when the issue of process is challenged in the revision petition before the High Court what the High Court is expected to see is as to whether the complaint and the papers accompanying the complaint prima facie indicate that an offence is made out. If so, the Court below was right in issuing process against the accused persons and such proceedings cannot be quashed if the complaint and the papers accompanying the complaint in the opinion of the High Court are such which do not prima facie disclose an offence then it will be open to the High Court to entertain the revision and quash the proceedings.
20. We would also like to refer to the cases of various High Courts on this point.
21. Andhra Pradesh High Court in 1976 Cr. LJ. 902 has held that order framing the charges in an interlocutory order and no revision under Section 397(2) Cr.PC lies.
22. Calcutta High Court in the following cases also held that the revision does not lie: (I) Dhanraj Join & Ors v. BK. Biswas and Ors. 1976 CR. LJ 1297; (2) Biswanath Agarwalla and Ors. v. The State 1976 Cr.LJ 1901; (3) State of Karnataka v. L. Muniswamy (1972)2 Cr LJ 1297; and (4) 1975 (2) Calcutta Law Journal 440.
23. Contrary view has been taken by a division Bench in 1982 Cr. LJ 1578.
24. A Single Judge of the Himachal Pradesh High Court also took the view that revision is not maintainable, Bagga Singh v. The State of HP and Am 1977 Cr. LJ 301, but in a later decision, the division bench had taken a contrary view in R.K. Vol Goldstain and Am v. Stanley Haque 1979 Cr. LJ 338.
25. Kerala High Court in an earlier decision in Jayaprakash v. The State 1981 Cr. LJ 460 (FB) had taken the view that revision is not maintaiable, but in a later decision in K.K. Abdullakutty Naji v. Additional Judicial 1st Class Magistrate & Ors (1983 Cr.LJ(NOC) 175 that it has taken a contrary view.
26. This court has taken the view that no revision is maintainable: vide P.T. Sharma v. State of Rajasthan 1984 Cr.LR (Raj) 397.
27. Whereas a Division Bench of the Bombay High Court has taken the view that revision is maintainable in 1981 Cr. L.J. 454 which had been relied in Dr. Dattaatraya Narayan Samant and Ors. v. Stale of Maharashtra 1982 Cr. LJ 1025.
28. Goa High Court also in Chandrasen Ramnath Raikar v. Ramakant Yashwant Kharangate and Anr. 1980 Cr LJ NOC has fallen in line with Bombay High Court view.
29. Orissa High Court in Khirod alias Khirodra Debata v. State of Orissa 1985 Crimes 35 , Kamaljit Singh v. State of Orissa (1985) Cr. LJ (NOC) 84, and Ramesh Samel and Ors. v. Chubi Mandal and Anr. 1987 Cr. LJ 759 has taken the view that revision is maintainable.
30. This court in an earlier decision in Guman Singh v. State of Rajasthan 1976 WLN 507, presided over by Justice K.D. Sharma, as he then was, had also taken the view that revision is maintainable, so also in Bharti Ram and Ors. v. State of Rajasthan 1983 ROC 216 (by Justice Miss Kanta Bhatnagar) has held that revision petition is maintainable. Justice G.K. Sharma, one of us in Hazari Lal v. State of Rajasthan 1985 (2) WLN 578 and Justice N.M. Kasliwal in Gautam Raj Mehta v. State of Rajasthan 1984 Cr.LR (Raj) 646 have interfered in revision against the order framing charge though the point as to whether or not revision is maintainable was not discussed by them. Earlier view of this court in Guman Singh & Bharti Ram (supra were not noticed by Justice Kasliwal in Mathura Lal v. State of Rajasthan 1984 RCC 336 and P.T. Sharma (supra). Another Single Judge of this Court (Kapoor, J.) in Criminal Revision No. 159/79 Syed Mohd. Ali v. State decided on May 6, 1986 had considered the point whether revision is maintainable or not, at great length and after noticing several cases, had come to the conclusion that revision under Section 397(2) Cr.PC is maintainable against an order framing charge.
31. We have given our thoughtful consideration to the whole matter and have also gone through the various judgments referred to above.
32. In our opinion, the question referred to has to be answered in the affirmative, in view of the authoritative pronouncement (by three Judges) of Hon'ble the Supreme Court in V.C. Shukla's case (supra) where in after considering a number of authorities mentioned above, their Lordships have categorised five propositions and then after applying these tests, in para 34 of the judgment, have observed that an order framing charge is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. This judgment was relied on by learned Single Judge of this court in P.T. Sharma's case (supra), and we are in agreement with the view expressed in that case. There is no discussion regarding this point either in Bharti Ram or Hazari Lal or Gautam Raj Mehta's cases (supra) of this Court. Learned Single Judge who decided the case in Gaman Singh (supra) had not the benefit of the observations of the Supreme Court in V.C. Shukla (supra) or even the case of Amarnath or Madhu Limiya (supra). The learned Single Judge who decided the case of Syed Mehmood Ali (supra) has, of course, observed and noticed V.C. Shukla's case(supra) but the same was distinguished because that was a case arising out under the Special Courts Act their Lordships were considering the import and meaning assigned to the word 'interlocutory order' under Section 11 of the Act. We cannot ignore absolutely a well known fact that there was a lot of arrears both in the lower courts as well as in the High Court and the very purpose of introducing Section 397(2) Cr.PC prohibiting exercise of revisional jurisdiction in relation to interlocutory order, will be frustrated in case revision petitions are held to lie as a matter of course in cases of framing of charges. By filing a revision petition, litigation is also protracted & criminal cases will take lot of time before they are finalised and sword of damocles will keep on hanging on the persons against whom some allegations have been made in the complaint or the report made to the police. The petitioner and the accused persons against whom charges are framed are not left without any remedy and if the seriously feel that there is no evidence worth the name and the charges ought not to have been framed, they could very well approach the High Court under Section 482 Cr.PC where the High Court will have occasion to examine the contention of the petitioner and the process of the court will not be allowed to be abused in a proper case.
33. Thus, we answer the question in the affirmative and hold that the order framing charges against accused persons is an interlocutory order within the meaning of Section 397(2) Cr.PC.