TaxTMI 
TaxTMI 
1991 (6) TMI 256
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-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, w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h the main controversy between the parties remained undisposed of. An illustration of such a case is to be found in the State 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 the 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 fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Lah 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 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 no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tain 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 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation 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 acquittal 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rect to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue 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, 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 again....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 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 inst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 ( (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 (SC) (supra) we should rule that an order framing charge is an interlocutory order within the meaning 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&....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntry, 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal 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 (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 C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ven 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, Amarnath (1977 Cri LJ 1891) and Madhu Limaye (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 or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ession 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere 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 (supra), it was specifi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 repo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....upra) 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 334, the question of framing of charge did not arise, hence the decision is not of much help. Ashok Kumar v. State 1988 Cri LR319, 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 (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 (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 assista....