Full Judgment Text
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PETITIONER:
MADHU LIMAYE
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA
DATE OF JUDGMENT31/10/1977
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
GOSWAMI, P.K.
DESAI, D.A.
CITATION:
1978 AIR 47 1978 SCR (1) 749
1977 SCC (4) 551
CITATOR INFO :
F 1980 SC 258 (10)
E 1980 SC 962 (6,21,23,34,44,67,103,105,114)
F 1983 SC 67 (5)
RF 1992 SC 604 (97)
ACT:
Code of Criminal Procedure, ( Act 11 1974), 1973 Ss. 397 (2)
& 482-Scope of-Whether the bar in s. 397(2) refers to
revisional powers of the High Court in all cases or only
refers to revisional powers against interlocutory orders.
HEADNOTE:
The appellant was prosecuted for having made statements
dafamatory to the then Law Minister of the Government of
Maharashtra. The Government decided to prosecute the
appellant for an offence tinder Section 500 of Indian Penal
Code on the ground that the Law Minister was defamed in
respect of his conduct in the discharge of his public
functions. Sanction was purported to have been accorded
under section 199(4)(a). Thereafter, the public prosecutor
filed a complaint in the court of the Sessions Judge.
Process was issued against the appellant upon the said
complaint. The appellant filed an application to dismiss
the complaint on the ground that the court had no
jurisdiction to entertain the complaint. The appellant
contended that the allegations were made against Shri
Antulay in relation to what he had done in his personal
capacity and not in his capacity as a Minister. The
appellant challenged the jurisdiction of the court on some
other grounds, also challenging the validity of the
sanction. The Sessions Judge rejected the contentions of
the appellant and framed a charge against the appellant
under section 500 of the Penal Code. The appellant,
thereupon, filed a revision application in the High Court.
The High Court without going into the merits held that the
revision application was not maintainable in view of
provisions of section 397(2).
Allowing the appeal by special leave,
HELD : 1. On a plain reading of section 482 it would follow
that nothing in the code which would include section 397(2)
shall be deemed to limit or affect the inherent powers of
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the High Court. However, it cannot be said that the said
bar is not to operate in the exercise of the inherent power
at all because it would be setting at naught one of the
limitation imposed upon the exercise of revisional powers.
A happy and harmonious solution would be to say that the bar
provided in section 397(2) operates only in, exercise of the
revisional power of the High Court meaning thereby that the
High Court will have no power of revision in relation to any
interlocutory order. The inherent power would come into
play there being no other provision in the code for the
redress of the grievance of the aggrieved party. in case the
impugned order 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 of affect the exercise of the inherent power by the
High Court. Such cases would be few and far between. The
High Court must exercise the inherent power very sparingly.
[753 H; 754 A-D]
Amar Nath and Ors,. v. State of Haryana & Anr. Crl. A. No.
124 of 1977 decided on 29th July, 1977; modified &
reiterated.
R. P. Kapur v. The State of Punjab, [1960] 3 S.C.R. 388,
referred to.
2. Even if it is assumed that an order of the Court taking
cognisance or issuing process is an interlocutory order, the
bar created by section 397(2) will not prevent the High
Court from exercising its inherent power for stopping the
criminal proceeding as early as possible instead of
harassing the accused upto the end. [754 E]
3. Ordinarily and generally the expression "Interlocutory
Order" has been understood and taken to mean as a converse
of the term final order. [735 H]
750
S. Kuppuswami Rao v. The King, [1947] Federal Court Saleman
V. Warner, (1881) 1 C.B. 734 referred to.
The strict test for interpreting the. words ’Interlocutory
Order’ cannot be applied while interpreting it as appearing
in section 397(2).. The interpretation that what is not a
final order must be an interlocutory order is neither
warranted nor justified. If it were so, it would render
almost nugatory the revisional power of the Sessions Court
or High Court conferred by section 397(1). Although the
words occurring in a Particular statute are plain and
unambiguous they have to be interpreted in a ’manner which
would fit in the context of the other provisions of the
Statute and bring about the real intention of the
legislature. There may be an order passed during the course
of a proceeding which may be not final but yet it may not be
interlocutory order pure or simple. Some kinds of orders
may fall in between the two. The bar of section 397(2) is
not meant to be attracted to such kind of intermediate
orders. They may not be final orders for the purposes of
Article 134 of the Constitution yet it would not be correct
to characterise them as merely interlocutory within the
meaning of section 397(2). [756 F-H, 757 A--F, 759 E]
Abdul Rahman v. D. K. Cassim and Sons, (1933) 60 Indian
Appeals, 76, Baldevdas v. Filmistan Distributors India (P)
Ltd., A.I.R. 1970 S.C. 406 and Parameshwari Devi v. State
and Anr. [1977] 2 S.C.R. 160 and Prakash Chand Agarwal &
Ors. v. M/s Hindustan Steel Ltd., [1977] 2 S.C.R. 405
referred to.
4.If a complaint is dismissed under section 203 or 204(4)
or the court holds the proceedings to be void or discharge
the accused, a revision to the High Court at the instance of
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the complainant or the prosecutor would be competent. It.
therefore, does not stand to reason why an accused will have
no remedy to move the High Court in revision or invoke its
inherent power for the quashing of criminal proceedings
initiated on a complaint or otherwise. [760 C-E]
The court allowed the appeal, set aside the High Court
Judgment and remitted the case back to the High Court to
dispose of on merits. 1760 F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 81 of
1977.
Appeal by Special Leave from the Judgment and Order dated
10-1 1-75 of the Bombay High Court in Criminal Revision
Application No.: 180 of 1975.
K. Rajendra Chudhary and Mrs. Veena Devi Khanna for the
appellant.
M. N. Phadke and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
UNTWALIA J.-This is an appeal by special leave from the
order of the Bombay High Court rejecting the application in
revision filed by the appellant under section 397(1) of the
Code of Criminal Procedure, 1973 hereinafter to be referred
to as the 1973 Code or the new Code, on the ground that it
was not maintainable in view of the provision contained in
subsection (2) of section 397. The High Court has not gone
into its merits.
It is not necessary to state the facts of the case in any
detail for the disposal of. this appeal. A bare skeleton of
them will suffice. In a press conference held at New Delhi
on the 27th September, 1974 the appellant is said to have
made certain statements and handed over a
751
press hand-out" containing allegedly some defamatory
statements concerning Shri A. R. Antulay, the then Law
Minister of the Government of Maharashtra. The said
statements were published in various newspapers. The State
Government decided to prosecute the appellant for an offence
under section 500 of the Indian Penal Code as it was of the
view that the Law Minister was defamed in respect of his
conduct in the discharge of his public functions. Sanction
in accordance with section 199 (4) (a) of the 1973 Code was
purported to have been accorded by the State Government.
Thereupon the Public Prosecutor filed a complaint in the
Court of the Sessions Judge, Greater Bombay. Cognizance of
the offence alleged to have been committed by the appellant
was taken by the Court of Sessions without the case being
committed to it as permissible under sub-section (2) of
section 199. Process was issued against the appellant upon
the said complaint.
The Chief Secretary to the Government of Maharashtra was
examined on the 17th February, 1975 as a witness in the
Sessions Court to prove the sanction order of the State
Government. Thereafter on tile 24th February, 1975 Shri
Madhu Limaye, the appellant, filed an application to dismiss
the complaint on the ground that the Court had no
jurisdiction to entertain the complaint. The stand taken on
behalf of the appellant was that allegations were made
against Shri Antulay in relation to what he had done in his
personal capacity and not in his capacity of discharging his
functions as a Minister. Chiefly on that ground and on some
others, the jurisdiction of the Court to proceed with the
trial was challenged by the appellant.
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The appellant raised three contentions in the Sessions Court
and later in the High Court assailing the validity and the
legality of the trial in question. They are :-
(1) That even assuming the allegations made
against Shri Antulay were defamatory, they
were not in respect of his conduct in the
discharge of his public functions and hence
the aggrieved person could file a complaint in
the Court of a competent Magistrate who after
taking cognizance could try the case or commit
it to the Court of Sessions if so warranted in
law. The Court of Sessions could not take
cognizance without the committal of the case
to it.
(2) The sanction given was bad in as much as
it was not given by the State Government but
was given by the Chief Secretary.
(3) The Chief Secretary had not applied his
mind to the entire conspectus of the facts and
had given the sanction in a mechanical manner.
The sanction was bad on that account too.
The Sessions Judge rejected all these contentions and framed
a charge against the appellant under section 500 of the
Penal Code. The appellant, thereupon, challenged- the order
of the Sessions Judge in the revision filed by him in the
High Court. As already ’stated, without
752
entering into the merits of any of the contentions raised by
the appellant, it upheld the preliminary objection as to the
maintainability of the revision application. Hence this
appeal.
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 s. 397(2)."
(2 The impugned order of the Magistrate,
however, was not an interlocutory order.
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.
Under section 435 of the 1898 Code the High Court had the
power to "call for and examine the record of any proceeding
before any inferior Criminal Court ’situate within the local
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limits of its jurisdiction for the purpose of satisfying
itself 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", and
then to pass the necessary orders in accordance with the law
engrafted in any of the sections following section 435.
Apart from the revisional power, the High Court possessed
and possesses the inherent powers to be exercised ex debito
justitiae to do the real and the substantial ’justice for
the administration of which alone Courts exist. In express
language this power was recognized and saved in section 561A
of the old Code. Under section 397(1) of the 1973 Code,
revisional power has been conferred on the High Court in
terms which are identical to those found in section 435 of
the 1898 Code. Similar is the position apropos the inherent
powers of the High Court. We may read the language
(1) Criminal Appeal No. 124 of 1977 decided on the 29th
July, 1977.
753
of section 482 (corresponding to section 561A of the old
Code) of the, 1973 Code. It says
"Nothing in this Code shall be deemed to limit
or affect the inherent powers of the High
Court to make such orders as may be necessary
to give effect to any order under this Code,
or to prevent abuse of the process of any
Court or otherwise to secure the ends of
justice."
At the outset the following principles may be noticed in
relation to the exercise of the inherent power of the High
Court which have been followed ordinarily and generally,
almost invariably, barring a few exceptions :-
(1) That the power is not to be resorted to
if there is a specific provision in the Code
for the redress of the grievance of the
aggrieved party ;
(2) That it should be exercised very
sparingly to prevent abuse of process of any
Court or otherwise to secure the ends of
justice;
(3) That it should not be exercised as
against the express bar of law engrafted in
any other provision of the Code.
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 introduc-
tion of a provision like sub section (2) of section 397 in,
the 1973 Code.
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 inter-
locutory orders delaying the final disposal of the
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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
754
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 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 upto 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.
In R. P. Kapur v. The State of Punjab (1) Gajendragadkar J..
as he then was, delivering the judgment of this Court
pointed out, if we may say so with respect, very succinctly
the scope of the inherent power of the High Court for the
purpose of quashing a criminal proceeding. Says the learned
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Judge at pages 392-93 :--
"Ordinarily criminal proceedings instituted
against an accused person must be tried under
the provisions of the Code, and the High Court
would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is
not possi-
(1) [1960] 3 SCR. 388.
755
ble, desirable or expedient to lay down any
inflexible rule which would govern the
exercise of this inherent jurisdiction.
However, we may indicate some categories of
cases where the inherent jurisdiction can and
should be exercised for quashing the
proceedings. There may be cases where it may
be possible for the High Court to take the
view that the institution or continuance of
criminal proceedings against an accused person
may amount to the abuse of the process of the
court or that the quashing of the impugned
proceedings would secure the ends of justice.
If the criminal proceeding in question is in
respect of an offence alleged to have been
committed by an accused person and it
manifestly appears that there is a legal bar
against the institution or continuance of the
said proceeding the High Court would be
justified in quashing the proceeding on that
ground. Absence of the requisite sanction
may, for instance, furnish cases under this
category. Cases may also arise where the
allegations in the First Information Report or
the complaint, even if they are taken at their
face value and accepted in their entirety, do
not constitute the offence alleged; in such
cases no question of appreciating evidence
arises; it is a matter merely of looking at
the complaint or the First Information Report
to decide whether the offence alleged
is disclosed or not. In such cases it would
be legitimate for the High Court to hold that
it would be manifestly unjust to allow the
process of the criminal court to be issued
against the accused person. A third category
of cases in which the inherent jurisdiction of
the High Court can be successfully invoked may
also arise. In cases falling under this
category the allegations made against the
accused person do constitute an offence
alleged but there is either no legal evidence
adduced in support of the case or evidence
adduced clearly or manifestly fails to. prove
the charge’. In dealing with this class of
cases it is important to bear in- mind the
distinction between a case where there is no
legal evidence or where there is evidence
which is manifestly and clearly inconsistent
with the accusation made and cases where there
is legal evidence which on its appreciation
may not support the accusation in question.
In exercising its jurisdiction under s. 561-A
the High Court would not embark upon an
enquiry as to whether the evidence in question
is reliable or not. That is the function of
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the trial magistrate, and ordinarily it would
not be open to any party to invoke the High
Court’s inherent Jurisdiction and contend that
on a reasonable appreciation of the evidence
the accusation made against the accused would
not be sustained."
We think the law as stated above is not affected by section
397(2) of the new Code. It still holds good in accordance
with ’.section 482.
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
756
"....... 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."
In S. Kuppuswami Rao v. The King(1) Kania C. J., delivering
the judgment of the Court has referred to some English
decisions at pages 185 and 186. Lord Esher M. R. said in
Salaman v. Warner(2) "If their decision, whichever way it is
given, will, if it stands, finally dispose of the matter in
dispute, I think that for the purposes of these rules it is
final. On the other hand, if their decision, if given in
one way, will finally dispose of the matter in dispute, but,
if given in 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 proceeding 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 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
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will be an interlocutory one. Even so, as we have said
above, the inherent power of the High Court can be invoked
for quashing such a criminal proceeding. But in our
judgment such an interpretation and the universal
application of the principle that what is not a final order
must be an interlocutory order is neither warranted nor
justified If it were so it will render almost nugatory the
revisional power of the Sessions Court or the High Court
conferred on it by section 397(1). On such a ’strict
interpretation,.
(1)[1947] Federal Court Reports, 180.
(2) [1891] 1 Q.B. 734.
757
only those orders would be revisable which are orders passed
on the final determination of the action but are not
appealable under Chapter XXIX of the Code. This does not
seem to be the intention of the Legislature when it retained
the revisional power of the High Court in terms identical to
the one in the, 1898 Code. In what cases then the High
Court will examine the legality or the propriety of an order
or the legality of any proceeding of an inferior Criminal
court ? Is it circumscribed to examine only such proceeding
which is brought for its examination after the final
determination and wherein no appeal lies ? Such cases will
be very few and far between. It has been pointed out
repeatedly, vide, for example, The River Wear Commissioners
v. William Adamson(1) and R. M. D. Chamarbaugwalla v. The
Union of India ( 2) that although the word occurring in a
particular statute are plain and unambiguous, they have to
be interpreted in a manner which would fit in the context of
the other provisions of the statute and bring about the real
intention of the legislature. On the one hand, the
legislature kept intact the revisional power of the High
Court and, on the other, it put a bar on the exercise of
that power in relation to any interlocutory order. In such
a situation it appears to us that the real intention of the
legislature was not to equate the expression "interlocutory
order" as invariably being converse of the words "final
order". There may be an order passed during the course of a
proceeding which may not be final in the sense noticed in
Kuppuswami’s case (supra), but, yet it may not be an
interlocutory order-pure or simple. Some kinds of order may
fall in between the two. By a rule of harmonious
construction, we, think that the bar in sub-section (2) of
section 397 is not meant to be attracted to such kinds of
intermediate orders. They may not be final orders for the
purposes of Article 134 of the Constitution, yet it would
not be correct 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 culled 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 subsection (2) of section 397. In our
opinion it must be taken to be an order of the type falling
in the middle course.
In passing, for the sake of explaining ourselves, we may
refer to what has been said by Kania C. J. in Kuppuswami’s
case at page 187 by quoting a few words from Sir George
Lowndes in the case of Abdul Rahman V. D. K. Cassim and
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Sons(3). The learned law Lord said with reference to the
order under consideration in that case : "The effect of the
order from which it is here sought to appeal was not to
dispose finally of the rights of the parties. It no doubt
decided an important, and even a vital, issue in the case,
but it left the suit alive, and provided for its trial in
the ordinary way. Many a time a question
(1) [1876-77] 2 A.C. 743.
(3) [1933] 60 Indian Appeals, 76.
(2) [1957] S.C.R. 930.
758
arose in India as to what is the exact meaning of the phrase
"case decided" occurring in section 1 1 5 of the Code of
Civil Procedure. Some High Courts had taken the view that
it meant the final order passed on final determination of
the action. Many others had however, opined that even
interlocutory orders were covered by the said term. This
Court struck a mean and it did not approve of either of the
two extreme lines. In Baldevdas v. Filmistan Distributors
(India) Pvt. Ltd.(1) it has been pointed out :
"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 :"
We may give a clear example of an order in a civil case
which may not be a final order within the meaning of
Article 133 (1) of the Constitution, yet it will not be
purely or simply of an interlocutory character. Suppose for
example, a defendant raises the plea of jurisdiction of a
particular Court to try the suit or the bar of limitation
and succeeds, then the action is determined finally in that
Court. But if the point is decided against him the suit
proceeds. Of course, in a given case the point raised may
be such that it is interwoven and interconnected with the
other issues in the case, and that it may not be possible to
decide it under Order 14 Rule 2 of the Code of Civil
Procedure as I preliminary point of law. But, if it is a
pure point of law and is decided one way or the other, then
the order deciding such a point may not be interlocutory,
albeit-may not be final either. Surely, it will be a case
decided, as pointed out by this Court in some decisions,
within the meaning of section 115 of the Code of Civil
Procedure. We think it would be just and proper to apply
the same kind to test for finding out the real meaning of
the expression ’interlocutory order’ occurring in section
397(2).
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(2) After an enquiry under section 476 of the 1898
Code an order was made directing the filing of a complaint
against the appellant. It was affirmed by the High Court.
The matter came to this Court on grant of a certificate
under Article 134(1) (c). A question arose whether the
order was a "final order" within the meaning of the said
constitutional provision. Shelat J., delivering the
judgment on behalf of himself and two other learned Judges,
said that it was a final order. The dissenting judgment was
given by Bachawat J., on behalf of himself find one other
learned Judge. In the majority decision four tests were
culled out from some English decisions. ’they are found
enumerated at page 688. One of the tests is "If the order
in question is reversed would the action have to go on ?"
Applying that test to the facts of the instant case it would
be noticed that if the plea of the appellant succeeds and
the order of the Sessions Judge is reversed, the criminal
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proceeding as initiated and instituted against him cannot go
on. If, however, he loses on the merits of the preliminary
point the proceeding will go on. Applying the test of
Kuppuswami case such an order will
(1) A. T. R. 1970 S.C. 406.
(2) [1968] 2 S.C.R. 685.
759
not be a final order. But applying the fourth test noted at
page 688 in Mohan Lal’s case it would be a final order. The
real point of distinction, however, is to be found at page
693 in the judgment of Shelat, J.The passage runs thus :
"As observed in Ramesh v. Patni-[1966] 3
S.C.R. 198 the finality of that order was not
to be judged by correlating that order with
the controversy in the complaint,viz. whether
the appellant had committed the offence
charged against him therein. The fact that
that controversy still remained alive is
irrelevant."
The majority view is based upon the distinction pointed out
in the above passage and concluding that it is a final order
within the meaning of Article 134(1) (c). While Bachawat
J., said at page 695 : "It is merely a preliminary step in
the prosecution and therefore an interlocutory orders." Even
though there may be a scope for expressing different
opinions apropos the nature of the order which was under
consideration in Mohan Lars case, in our judgment,
undoubtedly, an order directing the filing of a complaint
after enquiry made under a provision of the 1973 Code,
similar to section 476 of the 1898 Code will not be an
interlocutory order within the meaning of ’section 397(2).
The order will be clearly revisable by the High Court. We
must, however, hasten to add that the majority decision in
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 on a point which, when
accepted, will conclude the particular proceeding, will
surely be not an interlocutory order within the meaning of
section 397(2).
We may also refer to the decision of this Court in
Parmeshwari Devi v. State and Anr.(1) 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 Lals 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 :
"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
(1) [1977] 2 S.C.R. 160.
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760
decision of this Court in Prakash Chand Agarwal & Ors. v.
M/s Hindustan Steel Ltd.(1) 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 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 Lars 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.
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.
For the reasons stated above, we allow this appeal, set
aside the judgment and order of the High Court and remit the
case back to it to dispose of the appellant’s petition on
merits, in the manner it may think fit and proper to do in
accordance with the law and in the light
of this judgment.
P.H.P. Appeal allowed.
(1) [1971] 2 S.C.R. 504.
761