Orissa High Court
Ramesh Samal And Ors. vs Chabi Mandal And Anr. on 5 November, 1986
Equivalent citations: 1987CRILJ759
ORDER B.K. Behera, J.
1. Upon hearing Mr. S. K. Padhi for the petitioners, Mr. S. C. Mohapatra for the opposite party No. 1 and Mr, R. K. Patra, the learned Additional Government Advocate, we find that the impugned order passed by the learned Judicial Magistrate, Digapahandi, taking cognizance of alleged commission of offences by the petitioners punishable Under Sections 148, 302 read with Sections 149 and 302 read with Section 109 of the Penal , Code on the basis of a petition of complaint by the opposite party 1 which has been maintained by Mr. C. R. Pal, the learned Sessions Judge, Berhampur, must be set at naught, for the reasons to follow.
2. On the basis of a first information report in respect of the same incident, investigation had been taken up by the police agency and on its completion, a charge-sheet had been placed against the petitioners Ramesh Samal, Alekh Mandal, Raghunath Nahak and Bishnu Mandal and the other petitioners were not proceeded against. An application made Under Section 319 of the Cr.P.C. (for short, the Code) for impletion of the petitioners against whom charge-sheet had not been placed had been rejected.
3. Three of the petitioners, namely, Ramesh, Samal, Alekh Mandal and Raghunath Nahak, who stood trial in the Court of Session, had been acquitted by the time the impugned order of taking cognisance was passed. Another petitioner, namely, Bishnu Mandal, stood trial subsequently and was acquitted. In respect of the other petitioners, the order of cognisance in a case triable by the Court of Session could not have been passed on the basis of a petition of complaint without examination of all the witnesses for the complainant-opposite party No. 1 in flagrant violation of the Proviso to Sub-section (2) of Section 302 of the Code and in view of the principles laid down by this Court in (1979) 47 Cut LT 244, Gokulananda Mohanty v. Muralidhar Mallik 1983 Cri LJ NOC 52 (Orissa), E. Khetra v. Kahal Madhab (1984) 1 Orissa LR 58:1983 Cut LR (Cri) 383, Guljar Hussain v. Krishna Soila and 1984 Cri LJ 901 : (1984) 1 Orissa LR 340 : (1984) 57 Cut LT 355, Om Prakash Saha v. Manmohan Mohanty.
4. Relying on a decision of the Andhra Pradesh High Court reported in 1976 Cri LJ 902, Budaraju Seshagiri Rao v. T.V. Sarma, the learned Sessions Judge has dismissed the revision preferred by the petitioners on the ground that an order taking cognisance is an interlocutory one and a revision is barred Under Section 397(2) of the Code.
5. The legislative intent in enacting Section 397(2) of the new Code was not to limit the powers of the High Court or the Court of Session sitting in revision. All the powers of the old Code have been retained subject to the exceptions provided in Sections 397(2) and 397(3) of the Code. This new provision was introduced to prevent vexatious litigations by making applications in revision against interlocutory orders with a view to delaying the proceedings and harassing the adversaries. The term 'interlocutory' has not been defined in the Code. What is an interlocutory order and what is a final order have been interpreted in a number of cases. The meanings of the word 'interlocutory1 and 'final' have to be considered separately in relation to the particular purposes for which these words are required to be interpreted and no singular test can be applied to determine as to whether an order is final or interlocutory, as observed by the Supreme Court in , Mohanlal Maganlal Thakur v. State of Gujarat. In that case, some tests for determining a final order as distinct from interlocutory order were culled out from some English decisions in the majority decision of Shelat, J. One of the tests is : "If the order in question is reversed, would the action have to go on ?" In the instant case, if the order taking cognisance is reversed, the action against the petitioners would not go on.
6. In , Amar Nath v. State of Haryana, the interpretation of the expression 'interlocutory order' came up for consideration and their Lordships, in paragraph 6 of the Judgment, observed and held:
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-knowTi legal significance and does not present any serious difficulty. It has been used in various statutes including the Civil P.C., 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 and 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 an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding may, 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.
7. In , Madhu Limaye v. State of Maharashtra, the Supreme Court indicated the meaning of the expression 'interlocutory order' referred to in Sub-section (2) of Section 397 of the Code. The real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse to the expression 'final order'. An order passed in the course of a criminal proceeding may not be final, but it may not necessarily be an interlocutory order. Some order may not be final and yet may not also be interlocutory. There may be intermediate orders to which the bar in Sub-section (2) of Section 397(2) would not apply. It would not be possible to make a catalogue of orders which may be purely interlocutory.
8. In (1983) 1 Crimes 357 : 1983 Cri LJ NOC 51, Khirod alias Khirodra Debata v. State of Orissa, this Court has elaborately discussed with reference to a number of reported cases of the Supreme Court and this Court as to what is and what is not an interlocutory order within the meaning of Section 397(2) of the Code.
9. In (supra) and (upra), the Supreme Court has held in similar facts and circumstances that the orders issuing processes to the accused persons to face trials are not interlocutory orders because had not the accused persons been summoned after taking cognisance, they would not have faced the trials. The order directing some persons to face a trial without proper application of mind cannot be held to be an interlocutory order, but one which decides a serious question as to the rights of the persons to be put on trial. That being the position, a revision against the order is fully competent.
10. Keeping in mind the intention of the Legislature in making the provision in Section 397(2) of the Code and the aforesaid principles in the reported cases of the Supreme Court and this Court referred to above, there can be no doubt that an order taking cognisance is not an interlocutory one and can be revised by the High Court or the Court of Session. Section 397(2) of the Code cannot bar the entertainment of a revision against an order taking cognisance but for which the case instituted by the complainant-opposite party 1 in the instant case would have come to an end and the petitioners would not have been prosecuted against.
11. The impugned order passed by the learned Sessions Judge sustaining the order passed by the learned Magistrate taking cognisance cannot be sustained in law. No doubt, but for the exercise of revisional jurisdiction, the learned Sessions Judge could not have set aside the impugned order passed by the learned Magistrate. As has been laid down by the Supreme Court in , Bindeshwari Prasad Singh v. Kali Singh and , Maj. Genl. A. S. Gauraya v. S. N. Thakur, the Code does not contain any provision enabling a Court of Session or a Magistrate to exercise inherent power and the power contained in Section 482 of the Code can be exercised only by the High Court and not by the Court of Session or any other subordinate Criminal Court. There is thus no power in the Code like the one contained in Section 151 of the Civil P.C. But the learned Sessions Judge was not correct in holding that the impugned order was an interlocutory one and he could have revised the order in exercise of his revisional jurisdiction.
12. For the foregoing reasons, we are>f the view that it is a fit case in which the impugned order taking cognisance should be quashed in exercise of the inherent jurisdiction of this Court to prevent an abuse of the process of the Court and in the interests of justice. We would allow the application and quash the impugned order taking cognisance passed by the learned Magistrate and confirmed by the learned Sessions Judge.
K.P. Mohapatra, J.
13. I agree.