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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.

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.