Gauhati High Court
Abdul Barek And 2 Ors vs The State Of Assam And Anr on 5 May, 2020
Author: Chief Justice
Bench: Chief Justice
Page No.# 1/13
GAHC010253812018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 1161/2018
1:ABDUL BAREK AND 2 ORS.
S/O LATE SUTI SEKH
R/O VILL- BALITIKA
PO. KALAKHOWA
DIST. LALUK
DIST. LAKHIMPUR, ASSAM
2: MUSSTT. ROHOMA KHATUN
W/O ABDUL BAREK
R/O VILL- BALITIKA
PO. KALAKHOWA
DIST. LALUK
DIST. LAKHIMPUR
ASSAM
3: MD. HASSEN ALI
S/O LATE AMJAT ALI
R/O VILL- BORAIKHANA
PO.O. MARICHAPATHAR
P.S. BIHPURIA
DIST.LAKHIMPUR
ASSAM
VERSUS
1:THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:MD. ABDUL ZABBAR
S/O LATE SUTI SEKH
R/O VILL- BALITIKA
P.O. KALAKHOWA
DIST. LAKHIMPUR
Page No.# 2/13
ASSAM
PIN - 787023
Advocate for the Petitioner : MR. T J MAHANTA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE THE CHIEF JUSTICE
ORDER
Date : 05-05-2020
1. The Court proceedings have been conducted by means of creating a Virtual Court with the help of technology, so as to maintain distance between the staff, Advocates and the Presiding Judge.
2. This petition is directed against the proceedings initiated on C.R. Case No. 108/2016 pending in the court of Judicial Magistrate, First Class, North Lakhimpur, and an order dated 25.05.2017 summoning the accused to stand trial for committing offence under Sections 436/506 of the IPC.
3. It appears that the respondent-complainant Md. Abdul Jabbar got an FIR registered on 01.03.2016 as Laluk Police Station Case No. 59/2016 under Section 436 IPC with the accusation that on the said date, at about 11:30 A.M., due to fire all the documents and furniture of his house had been damaged. At that time, except the physically challenged daughter of the complainant no one else was present in the house. The complainant had shown doubt on some persons who had caused the fire. It has further been stated in the FIR that at that point in time there was no gas cylinder or other inflammable article in the house. At the given time, electric bulb in the house was on and, therefore, there could not have been short-circuit.
4. Perusal of the FIR dated 01.03.2016, placed on record as Annexure-1, makes it evident that the complainant had shown suspicion in regard to the cause of fire and commission of a cognizable offence under Section 436 IPC by some unknown accused. Learned counsel for the petitioners has pointed out that after investigation a Final Report No. 32/2016 was Page No.# 3/13 submitted, which has been placed on record as Annexure-2.
5. I have gone through the contents of the Final Report. The Investigating Agency has reported that although the place of occurrence was visited and the statements of witnesses were recorded, however, the culprit could not be traced out. There is no chance of catching hold of the accused. In such circumstances, the Final Report was filed.
6. It appears that, subsequently, the Court, following due process, informed the complainant that no incriminating evidence had been found and, therefore, Final Report was being filed by the Investigating Agency.
7. It appears that the complainant filed an Objection Petition to the Final Report vide Annexure-5 stating that he had sufficient evidence and witnesses to indicate that the offence had been committed.
It appears that statement of the complainant was recorded under Section 200 Cr.P.C., as C.W.
1. The respondent-complainant has clearly shown his suspicion on three persons, namely, Rohima Khatun, Hasen Ali and Abdul Barek.
It further appears that statement of the other witnesses were also recorded, however, the same have not been placed on record by the learned counsel for the petitioners.
In the absence of statement of the witnesses, this Court is unable to adjudicate on the issue whether the order summoning the accused-petitioners dated 25.05.2017, which has been impugned by virtue of this petition, is illegal or not.
8. It is evident that vide the order dated 25.05.2017 (impugned order) the petitioners have been summoned to stand trial.
The order in verbatim reads as under:
"Complainant is present.
Today the case is fixed for order.
On perusal of the statement of the complainant and his witnesses, it is seen that there is prima facie material against eh accused persons, namely, Rahima Khatoon, Md. Hasen Ali and Md. Abdul Barek under Sections 436/506 of IPC.
Hence, issue summon to the aforementioned accused persons to appear before this Court to face trial.
Page No.# 4/13 Fix 29/06/2017 for appearance."
9. This Court, while dealing with a similar issue in Rajiv Jain and Anr. Vs. State of Assam and Anr. (Crl. Petition No. 1104/2019), has considered whether summoning an accused to stand trial is an interlocutory order, or it decides the rights of the accused and, therefore, revision would lie against such an order ? The relevant portions from the judgement rendered by this Court in Rajiv Jain (supra) are extracted below:
"4. Perusal of the impugned order(s) indicates that the petition, essentially, has been filed against the order summoning the accused persons to stand trial. The Hon'ble Supreme Court of India, in Amar Nath and Others vs. State of Haryana and another, reported in (1977) 4 SCC 137 (two JJ), while dealing with somewhat similar circumstances, has held that an order of summoning an accused is not an interlocutory order and, therefore, would be revisable.
The following needs to be noticed from the judgment rendered by the Hon'ble Supreme Court in Amarnath (supra).
"1. This appeal by special leave involves an important question as to the interpretation, scope, ambit and connotation of the word "interlocutory order" as appearing in sub-section (2) of Section 397 of the Code of Criminal Procedure 1973.
For the purpose of brevity, we shall refer to the Code of Criminal Procedure, 1898 as "the 1898 Code", to the Code of Criminal Procedure, 1898 as amended in 1955 as "the 1955 Amendment" and to the Code of Criminal Procedure, 1973 as "the 1973 Code". The appeal arises in the following circumstances.
2. An incident took place in Village Amin on April 23, 1976 in the course of which three persons died and FIR 139 dated April 23, 1976 was filed at police station Butana, District Karnal at about 5.30 p.m. The FIR mentioned a number of accused persons including the appellants as having participated in the occurrence which resulted in the death of the deceased. The police, after holding investigations, submitted a charge-sheet against the other accused persons except the appellants against whom the police opined that no case at all was made out as no weapon was recovered nor was there any clear Page No.# 5/13 evidence about the participation of the appellants. The police thus submitted its final report under Section 173 of the 1973 Code in so far as the appellants were concerned. The report was placed before Mr. B.K. Gupta, the Judicial Magistrate, First Class, Karnal, who after perusing the same set the appellants at liberty after having accepted the report. It appears that the complainant filed a revision petition before the Additional Sessions Judge, Karnal against the order of the Judicial Magistrate, First Class, Karnal releasing the appellants, but the same was dismissed on July 3, 1976. The informant filed a regular complaint before the Judicial Magistrate, First Class, on July 1, 1976 against all the 11 accused including the appellants. The learned Magistrate, after having examined the complainant and going through the record, dismissed the complaint as he was satisfied that no case was made out against the appellants. Thereafter the complainant took up the matter in revision before the Sessions Judge, Karnal, who this time accepted the revision petition and remanded the case to the Judicial Magistrate for further enquiry. On November 15, 1976, the learned Judicial Magistrate, on receiving the order of the Sessions Judge, issued summons to the appellants straightaway. The appellants then moved the High Court under Section 482 and Section 397 of the 1973 Code for quashing the order of the Judicial Magistrate mainly on the ground that the Magistrate had issued the summons in a mechanical manner without applying his judicial mind to the facts of the case. The High Court dismissed the petition in limine and refused to entertain it on the ground that as the order of the Judicial Magistrate dated November 15, 1976 summoning the appellants was an interlocutory order, a revision to the High Court was barred by virtue of sub-section (2) of Section 397 of the 1973 Code. The learned Judge further held that as the revision was barred, the Court could not take up the case under Section 482 in order to quash the very order of the Judicial Magistrate under Section 397(1) of the 1973 Code. Otherwise the very object of Section 397(2) would be defeated.
3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the Page No.# 6/13 inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.
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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 Page No.# 7/13 the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revison 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.
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10. *** *** *** So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with 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's was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway 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 preceded, was undoubtedly a matter of moment, and a valuable right of the Page No.# 8/13 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 appellants. If the appellants were not summoned, then they could not have faced the trial at 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."
(emphasised by me)
5. The issue raised and dealt with by the Hon'ble Supreme Court of India in Amarnath's case (supra) came up for consideration before a larger Bench in Madhu Limaye vs. The State of Maharashtra, reported in (1977) 4 SCC 551. In the said judgment, the following has been held in paragraphs 6, 7, 9, 10, 12, 16 and 17, which are extracted below:
"6. The point which falls for determination in this appeal is squarely covered by a decision of this Court to which one of us (Untwalia was a party in Amar Nath and Others v. State of Haryana & Anr. But on a careful consideration of the matter and on hearing learned counsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned judges of this Court in Amar Nath's case but in a somewhat modified and modulated form. In Amar Nath's case, as in this, the order of the Trial Court issuing process against the accused was challenged and the High Court was asked to quash the criminal proceeding either in exercise of its inherent power under section 482 of the 1973 Code corresponding to section 561A of' the Code of Criminal Procedure, 1898-hereinafter called the 1898 Code or the old Code, or under section 397(1) of the new Code corresponding to section 435 of the old Code. Two points were decided in Amar Nath's case in the following terms:
(1) "While we fully agree with-the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-s. (2) of s. 397 of the 1973 Code the inherent powers contained in s. 482 would not be available to defeat the bar contained in Page No.# 9/13 s. 397(2).
(2) The impugned order of the Magistrate, however, was not an interlocutory order.
7. For the reasons stated hereinafter we think that the statement of the law apropos point no. 1 is not quite accurate and needs some modulation. But we are-going to reaffirm the decision of the Court on the second point.
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9. In most of the cases decided during several decades the inherent power 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 or 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 subsection (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 in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional 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 operates only in exercise of the Page No.# 10/13 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 play, 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 proceeding 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 acquittal a 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 it 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.
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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:
Page No.# 11/13 "....... 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 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 termed '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 declarations 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."
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16. We may also refer to the decision of this Court in Parmeshwari Devi v. State11 that an order made in a criminal proceeding against a person who is not a party to the enquiry or trial and which adversely affected him is not an interlocutory order within the meaning of section 397 (2). Referring to a passage from the decision of this Court in Mohan Lal's case, the passage which is to be found in Halsbury's Laws of England, Volume 22, it has been said by Shinghal J., delivering the judgment of the Court, at page 164 (SCC p. 172, SCC (CRI) p. 77, para 8):
"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 enquiry or trial, against whom it is directed."
As already mentioned, the view expressed in Mohan Lal's case may be open to debate or difference. One such example is to be found in the decision of this Court in Prakash Chand Agarwal & Ors. v. M/s Hindustan Steel Ltd.12 wherein it was held that an order of the High Court setting aside an ex-parte decree in the suit and restoring the suit to Page No.# 12/13 the file of the Trial Court is not a final order within the meaning of Article 133. It is to be noticed that if the High Court would have refused to set aside the ex-parte decree, the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in Mohan Lal's case, such an order would have been a final order .
We are, however, not under any necessity to enter into this controversial arena. In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of sub-section (2) of section 397 of the 1973 Code.
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 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."
(emphasised by me)
6. Having considered the law on the issue; whether an order summoning an accused is an interlocutory order, in reference to the judgments referred to above, it becomes evident that in Amar Nath's case (supra) as also in Madhu Limaye's case (supra), the Hon'ble Supreme Court of India held that an order summoning an accused is not an interlocutory order. Such an order substantially affects the rights of the accused. Prejudice is caused to the accused if he is summoned to stand trial. A valuable right of the accused is adversely affected.
Page No.# 13/13 On a related issue, the larger Bench (3 JJs) of the Hon'ble Supreme Court of India in Madhu Limaye's case (supra), while modulating the judgment rendered in Amar Nath's case (supra) rendered by two Hon'ble Judges, held that power/jurisdiction under Section 482 Cr. P.C. is to be exercised very sparingly so as to secure ends of justice; or to prevent abuse of process of the Court. The larger Bench held that only in such given circumstances the proceedings in a criminal case, or an interlocutory order can be challenged."
9. From the law laid down by the Hon'ble Supreme Court of India in Amar Nath's case (supra) and Madhu Limaye's case (supra), as followed by this Court, an order summoning the accused materially affects the rights of the accused and, therefore, revision would lie against such an order.
10. In view of the above, the petition is dismissed with liberty to the petitioners to avail remedies provided in law, if so advised.
11. Since the order summoning the accused-petitioners has not been quashed by this Court, the lower Court would be at liberty to proceed with the matter.
12. Let a copy of this order be forwarded to the Lower Court.
13. Let a copy of the order be provided under the signatures of the Court Master.
JUDGE Comparing Assistant