Full Judgment Text
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PETITIONER:
AMAR NATH AND OTHERS.
Vs.
RESPONDENT:
STATE OF HARYANA & OTHERS
DATE OF JUDGMENT29/07/1977
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
UNTWALIA, N.L.
CITATION:
1977 AIR 2185 1978 SCR (1) 222
1977 SCC (4) 137
CITATOR INFO :
APR 1978 SC 47 (6,10,15)
E 1980 SC 962 (6,44,64,66,67,68,99,102,103,1
RF 1992 SC 604 (96,97)
ACT:
Code of Criminal Procedure, 1973-Ss. 397 and 482-Scope of.
Interlocutory order--What is-Order compelling persons to
face trial Without proper application of mind by the
Magistrate-If an interlocutory order.
HEADNOTE:
In the F.I.R. filed by the complainant, a number of persons,
including the appellants, were mentioned as participants in
a murder. On perusal of the final report submitted by the
Police, the Judicial Magistrate set them at liberty. The
complainant’s revision petition against the order of the
Judicial Magistrate was dismissed by the Additional Sessions
Judge whereupon the complainant filed a regular complaint
before the Judicial Magistrate against all the accused,
including the appellants. When this complaint was dismissed
by the Judicial Magistrate, the complainant went in revision
before the Sessions Judge who remanded the case to the
Judicial Magistrate for further enquiry. The Judicial
Magistrate then straightaway issued summons to the
appellants.
Dismissing the appellant’s petition under ss. 397 and 482 of
the Code of Criminal Procedure, 1973, for quashing the order
of the Judicial Magistrate, the High Court held that the
Judicial Magistrate’s order being an interlocutory order, a
revision to the High Court was barred by s. 397(2) and that
since the revision was barred, the Court could not take up
the case under s. 482 of the Code.
Allowing the appeal and remanding the case to the High
Court,
HELD : The impugned order of the Judicial Magistrate could
not be said to be an interlocutory order and does not fall
within the mischief of s. 397(2) and, therefore, a revision
against this order was fully competent under s. 397(1) or
under s. 482 of the Code because the scope of both the
sections in a matter of this kind is more or less the same.
[229H]
1. Where a revision to the High Court against the order of
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the Subordinate Judge is expressly barred under s. 397(2)
the inherent powers contained in s. 482 would not be
available to defeat the bar contained in s. 397(2). Section
482 contains, 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
ss. 397 and 482 would lead to the conclusion that, where a
particular order is expressly barred under s. 397(2) and
cannot be the subject of revision by the High Court, the
provisions of s. 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. [224G-H]
2. The term "interlocutory order" is a term of well-known
legal significance which has been used in various statutes.
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.
The term "interlocutory order" in s. 397(2) has, been used
in a restricted sense and not in any broad and artistic
sense. It merely denotes orders of a purely interim or
temporary nature which do not decide or touch the important
rights or 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 revision to the High
Court against that order, because that would be against the
very object which formed the basis for insertion of this
provision in s. 397 of the Code. For instance, orders
summoning witnesses, adjourning cases, passing
2 23
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 s. 397(2) of the 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 orders so as to be outside the purview
of the revisional jurisdiction of the High Court. [227D-G]
Central Bank of India v. Gokal Chand A.I.R. 1967 S.C. 799,
800, Mohan Lal Magan Lal Thacker v. State of Gujarat, [1968]
2 S.C.R. 685, Baldevdas v. Filmistan Distributors (India)
Pvt. Ltd., A.I.R. 1970 S.C. 406, Standard Glass Beads
Factory and Anr. v. Shri Dhar & Ors., A.I.R. 1960 All’. 692,
Union of India v. Khetra Mohan Banerjee, A.I.R. 1960 Cal.
190, Gokal Chand v. Sanwal Das & Others, A.I.R. 1920 Lah.
326, Begum Aftab Kamani v. Shri Lal Chand Khanna, A.I.R.
1969 Delhi 85 and Har Parshad Wali and Anr. v. Naranjan Nath
Matoo and others, A.I.R. 1959 J & K 139 referred to.
In the instant case, the impugned order cannot be said to be
an interlocutory order which could not be revised by the
High Court under s. 397(1) and (2) of the Code. By virtue
of the order of the Judicial Magistrate, as affirmed by the
Additional Sessions Judge, the appellants acquired a
valuable right of not being put on trial unless a proper
order was made against them. The complaint made for the
second time was dismissed by the Judicial Magistrate on
merits; in revision the Sessions Judge ordered further
enquiry and the Judicial Magistrate straightaway summoned
the appellants, which meant that they were to be put on
trial. With the passing of the impugned order, proceedings
started and the question of the appellants being put on
trial arose. Undoubtedly, this was a valuable right which
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the appellants possessed and which was denied to them by the
impugned order. It cannot, therefore, be said that the
appellants were not prejudiced or that any right of theirs
was not involved by that order. The impugned order was,
therefore, one of moment to the appellants involving a
decision regarding their rights. Compelling the appellants
to face a trial without proper application of mind by the
Magistrate, cannot be held to be an interlocutory matter but
one which decided a serious question as to the rights of the
appellants. [229C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 124 of
1977.
Appeal by Special Leave from the Judgment and Order dated
14-2-77 of the Punjab and Haryana High Court in Crl. Misc.
Petition No. 6070 of 1976.
D. Mookerjee and D. N. Mukherjee, for the Appellants.
H. S. Marwah, for Respondent No. 1
Anand Prakash and S. C. Patel, for Respondent No. 2
The Judgment of the Court was delivered by
FAZAL ALI, J.-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 S. (2) of S. 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.
An incident took place in village Amin on April 23, 1976 in
the course of which three persons died and F.I.R. No. 139
dated April
22 4
23, 1976 was filed at police station Butana, District Karnal
at about 5-30 P.M. The F.I.R. mentioned a number of accused
persons in 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 evidence about the participation of the
appellants. The police thus submitted its final report
under s. 173 of the 1973 Code insofar as the appellants were
concerned. The report was placed before Mr. B. K. Gupta the
Judicial Magistrate, 1st.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, 1st
Class, Karnal releasing the appellants, but the same was
dismissed on July 3, 1976. The informant filed a regular
complaint before the Judicial Magistrate, 1st Class, on July
1, 1976 against all the 11 accused including the appellants.
The, teamed 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
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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 s. 482 and s. 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 s.
(2) of s. 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 s. 482 in order. to quash the very
order of the Judicial Magistrate under s. 397(1) of the 1973
Code. Otherwise the very object of s. 397(2) would be
defeated.
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 s. 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
ss. 397 and 482 would lead to the irresistible conclusion
that where a particular order is expressly barred under s.
397(2) and cannot be the subject of revision by the High
Court, then to such a case the provisions of s. 482 would
not apply. It is well settled that the inherent
225
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.
So far 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 as 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
ss. 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
the impugned order even on facts. Sections 435 and 439
being identical in the 1898 Code and 1955 Amendment insofar
as they are relevant run, thus
"435(1) The High Court or any Sessions Judge
or District Magistrate or any Sub-divisional
Magistrate empowered by the State Government
in this behalf, may call ,for and examine the
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record of any proceeding before any inferior
Criminal Court situate within the local limits
of its or his 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..............
"439.(1) In the case of any proceeding the
record of which has been called for by itself
or which has been reported for orders, or
which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise
any of the powers conferred on a Court of
appeal by section 423, 426, 427 and 428 or on
a Court by section 338, and may enhance the,
sentence; and, when the Judges composing the
Court of revision are equally divided in
opinion, the case shall be disposed of in
manner provided by section 429.
(2) No order under this section shall be
made to the prejudice of the, accused unless
he has had an opportunity of being heard
either personally or by pleader in his own
defence."
226
In fact the only rider that was put under S. 439 was that
where the Court enhanced the sentence the accused had to be
given an opportunity of. being heard.
The concept of an interlocutory order qua the revisional
jurisdiction of the High Court, therefore, was completely
foreign to the earlier Code. Subsequently it appears that
there had been large number of arrears and the High Courts
were flooded with revisions of all kinds against interim or
interlocutory orders which led to enormous delay in the
disposal of cases and exploitation of the poor accused by
the affluent prosecutors. Some times interlocutory orders
caused harassment to the accused by unnecessarily
protracting the trials. It was in the background of these
facts that the Law Commission dwelt on this aspect of the
matter and in the 14th and 41st Reports submitted by the
Commission which formed the basis of the 1973 Code the said
Commission suggested revolutionary changes to be made in the
powers of the High Courts. The 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 Paragraph
5 of the Statement of Objects and Reasons-runs thus :
"the, powers of revision against interlocutory
orders are being takken away, as it has been
found to be one of the main contributing
factors in the delay of disposal of criminal
cases
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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 orders are filed with the result
that the appeals got delayed considerably.
Some of the more notorious cases concern big
business persons. So, this new provision was
also welcomed by most of the witnesses as well
as the Select Committee........... This was a
well-thought out measure so we do not want to
delete it".
22 7
Thus it would appear that s. 397(2) was incorporated in the
1973 Code with the avowed purpose of cutting out delays and
ensuring that the accused persons got a fair trial without
much delay and the procedure was not made complicated. Thus
the paramount object in inserting this new provision of sub-
s. (2) of s. 397 was to safeguard the interest of the
accused.
Let us now proceed to interpret the provisions of s. 397
against the historical background of these facts. Sub-
section (2) of s. 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, the what is the connotation of the term
"interlocutory order" as appearing in sub-s. (2) of s. 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
diffident. It has been used in various statutes including
the Codeof 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 thatthe
term "interlocutory order" in s. 397(2) of the 1973 Code
has beenused 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, 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 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 s. 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 s. 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.
In Central Bank of India v. Gokal Chand(1) this Court while
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describing the incidents of an interlocutory order, observed
as follows
"In the context of s. 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
(1) A.I.R. 1967 S.C. 799, 800.
228
and do not affect the rights or liabilities of
the parties. In a pending proceeding the
Controller, may pass many interlocutory orders
under ss. 36 and 37, such as orders regarding
the summoning of witnesses, discovery,
production and inspection of documents, issue
of a commission for examination of witnesses,
inspection of premises, fixing a date of
hearing and the admissibility of a document or
the relevancy of a question. All these
interlocutory orders are steps taken towards
the final adjudication and for assisting the
parties in the prosecution of their case in
the pending proceeding; they regulate the
procedure only ’and do not affect any right or
liability of the parties."
The aforesaid decision clearly illustrates the nature and
incidents of ’an interlocutory order and the incidents given
by this Court constitute sufficient guidelines to interpret
the connotation of the. word "interlocutory order" as
appearing in sub-s. (2) of s. 397 of the 1973 Code.
Similarly in a later case in Mohan Lal Magan Lal Thacker v.
State of Gujarat(1) this Court pointed out that the finality
of an order could not be judged by co-relating that order
with the controversy in the complaint. The fact that the
controversy still remained alive was irrelevant. In that
case this Court held that even though it was an
interlocutory order, the order was a final order.
Similary in Baldevdas v. Filmistan Distributors (India) Pvt.
Ltd. (2) while interpreting the import of the words "case
decided" appearing in S. 115 of the. Code of Civil
Procedure, this Court observed as follows:
"A case may be said to be decided, if the
Court adjudicates for the purposes of the suit
some right or obligation of the parties in
controversy;"
Apart from this it would appear that under the various
provisions of the Letters Patent of the High Courts in
India, an appeal lies to a Division Bench from an order
passed by a Single Judge and some High Courts have held that
even though the order may appear to be an interlocutory one
where it does decide one of the aspect of the rights of the
parties it is, appealable. For instance, an order of a
Single Judge granting a temporary injunction was held by a
Full Bench of Allahabad High Court in Standard Glass Beads
Factory and Anr.v. Shri Dhar & Ors. (3) as not being an
interlocutory 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(4), of the Lahore High
Court in Gokal Chand v. Sanwal Das and others;(5) of the
Delhi High Court
(1) [1968] 2 S.C.R. 685.
(2) A.I.R. [1970] S.C. 406.
(3) A.I.R. [1960] All. 692.
(4) A.I.R. [1960] Cal. 190.
(5) A.I.R. [1920] Lah. 326.
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229
in Begum Aftab Zamani v. Shri Lal Chand Khanna(1) and of the
Jammu & Kashmir High Court in Har Parshad Wali and Anr. v.
Naranjan Nath Matoo and others(2).
Applying the aforesaid tests, let us now see whether the
order impugned in the instant case can be said to be an
interlocutory order as held by the High Court. In the
first place, so far as the appellants are concerned, the
police had submitted its final report against them and they
were released by the Judicial Magistrate. A revision
against that order to the Additional Sessions Judge
preferred by the complainant had failed. Thus the
appellants, by virtue of the order of the Judicial
Magistrate as’ affirmed by the Additional Sessions Judge
,acquired a valuable right of not being put on trial unless
a proper order was made against them. Then came the
complaint by respondent No. 2 before the Judicial Magistrate
which was also dismissed ,on merits. The Sessions Judge in
revision, however, set aside the order dismissing the
complaint and ordered further inquiry. The Magistrate on
receiving the order of the Sessions Judge summoned the
appellants straightaway which meant that the appellants were
to, be put on trial. 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 theirs 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-ss. (1) and (2)
of s. 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 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.
For these reasons, the order of the Judicial Magistrate, 1st
Class, Karnal dated November 15, 1976 cannot be said to be
an interlocutory order and does not fall within the mischief
of sub-s. (2) of s. 397 of the 1973 Code and is not covered
by the same. That being the posi-
(1) A.I.R. 1969 Delhi 85.
(2) A.I.R. 1959 J. & K. 139.
230
tion, a revision against this order was fully competent
under S. 397(1) or under s. 482 of the same Code, because
the scope of both these sections in a matter of this kind is
more or less the same.
As we propose to remand this case to the High Court to
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decide the revision on merits, we refrain from making any
observation regarding the merits of the case. The appeal
is, therefore, allowed, the order of the High Court dated
February 14, 1977 refusing to entertain the revision
petition of the appellants is ’set aside. The High Court is
directed to admit the revision petition filed by the
appellants and to decide it on merits in accordance with the
law.
P.B.R.
Appeal allowed.
231