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1980 DIGILAW 76 (BOM)

NAPOLEON DANIEL JOHN v. State of Maharashtra

1980-02-28

M.S.JAMDAR, R.S.PADHYE

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JUDGMENT JAMDAR J.- The applicant has filed this application under section 482 of the Criminal Procedure Code read with Article 227 of the Constitution of India, being aggrieved by the order passed by the Sessions Judge, Buldhana rejecting applicant's application under section 397 of the Criminal Procedure Code on the ground that the order impugned in the said revision application are interlocutory orders. 2. The applicant Napoleon John had filed Criminal Case No. 436 of 1978 against Zahiruduin. During the pendency of the said case, he filed an application for prosecuting Zahiruddin for intentionally swearing a false Affidavit for practising fraud on the Court of the Chief Judicial Magistrate. After the decision of the Criminal Case No. 436/78, Napoleon John sent a confidential application to the' Chief Justice and to the Sessions. Judge, Buldhana against the Chief Iudicial Magistrate Shri Jaiwar. On 7-9-79 Napoleon John made an application to the. Chief J1.ldicial Magistrate for referring the aforesaid Miscellaneous Criminal proceeding arising out of Criminal Case No. 436 of 1978 to the Sessions Judge under section 479 of the Criminal Procedure Code. On 14-9-1979, he submitted another application to the Chief Judicial Magistrate complaining about the conduct of the latter and requesting him to transfer the Miscellaneous Criminal proceedings to the Sessions Judge. The learned Chief Judicial Magistrate felt that some of the imputations levelled against him in the application were made purposely to insult the Court and amounted to contempt of the Court. He, therefore, came to the conclusion that Napoleon John committed an offence under section 228 of the Indian Penal Code. He also felt that action under section 345 of the Criminal Procedure Code would not be sufficient to meet the ends, of justice. The learned Chief Judicial Magistrate, therefore, forwarded the case under section 346 of the Criminal Procedure Code to the Judicial Magistrate, Buldhana for trial. The Judicial Magistrate received the case on 14-9-79 and on the same day he directed issue of summons against Napoleon the present applicant for an offence under section 228 of the Indian Penal Code. The learned Chief Judicial Magistrate, therefore, forwarded the case under section 346 of the Criminal Procedure Code to the Judicial Magistrate, Buldhana for trial. The Judicial Magistrate received the case on 14-9-79 and on the same day he directed issue of summons against Napoleon the present applicant for an offence under section 228 of the Indian Penal Code. Being aggrieved, Napoleon John filed Criminal Revision Application No. 51 of 1979 in the Court of Sessions Judge for quashing the order of reference under section 346 passed by the Chief Judicial Magistrate and also the order passed by the Judicial Magistrate, Buldhana directing issue of summons against him, on various grounds mentioned in the revision application. The learned Sessions Judge, Buldhana rejected the revision application on the preliminary ground that the revision application would not be tenable as a bar of subsection (2) of section 397 would come into play. It is this order, which is sought to be challenged by the present application. 3. The question whether issuing of process against the accused person is an interlocutory order is no longer in doubt. What order constitutes an interlocutory order has been laid down by the Supreme Court and the proposition that all orders which are not final, are interlocutory orders, has been rejected. 4. The question whether an order directing issue of summons to the accused person is an interlocutory order and whether revision application against such an order is barred by virtue of sub-section (2) of section 397 of the Code of Criminal Procedure, 1973, was considered by their Lordships of the Supreme Court in the case Amar Nath and others v. State of Haryana and others1. In that case on the basis of the First Information Report mentioning a number of accused persons, the police submitted final report under section 173 of the Criminal Procedure Code in respect of the appellants before the Supreme Court. The Judicial Magistrate, before whom the report was placed, set the appellants at liberty and this order was maintained by the Sessions Judge. The informant, therefore, filed regular complaint before the Judicial Magistrate, who after examining the complainant dismissed the complaint on the ground that no case was made out against the appellants. The Judicial Magistrate, before whom the report was placed, set the appellants at liberty and this order was maintained by the Sessions Judge. The informant, therefore, filed regular complaint before the Judicial Magistrate, who after examining the complainant dismissed the complaint on the ground that no case was made out against the appellants. The Sessions Judge accepted the revision application filed by the complainant and directed the Judicial Magistrate to make further enquiry into the matter and on the basis of this order, the Judicial Magistrate issued a summons to the appellants straightway. The appellants, therefore, moved the High Court under section 482 read with section 397 of the Criminal Procedure Code for quashing the order of the Judicial Magistrate. 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-section (2) of section 397 of the Criminal Procedure Code, 1973. In the appeal preferred by the accused, against whom summonses were directed to be issued. Their Lordships of the Supreme Court considered the interpretation of the term 'interlocutory order' and observed as follows :- "The term 'interlocutory order' in section 397 (2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes order 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 section 397. Thus, for instance, order summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under section 397 (2). Thus, for instance, order summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under section 397 (2). 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." 5. The above mentioned decision was approved by the Supreme Court in the case Madhu Limaye v. State of Maharashtra2. In that case, Their Lordships of the Supreme Court observed that universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. Their Lordships further observed as follows :- "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)." In the present case also if the contention of Napoleon John is accepted then the proceeding would come to an end. He has given several grounds in his revision application for quashing the impugned orders. 6. The Full Bench decision of the Himachal Pradesh High Court in R. K. Vol Gondatain & another v. Stanley Haque3 was cited before the learned Sessions Judge in support of the proposition that the impugned orders are not interlocutory orders. The learned Sessions Judge distinguished this case and refused to apply the principles propounded therein on the ground that as in that case, the stage of framing charge was not reached in the present case. This approach is obviously incorrect. Firstly there is no question of framing of charge in this case which is triable summarily and secondly as mentioned above, the determinative test is whether if the plea of the present applicant is accepted it would put an end to the proceeding or not. In the above mentioned case, which was cited before the learned Sessions Judge and which he tried to distinguish, the observations of the Supreme Court in Amarnath's case and Madhu Limaye's case were quoted in extenso. In the above mentioned case, which was cited before the learned Sessions Judge and which he tried to distinguish, the observations of the Supreme Court in Amarnath's case and Madhu Limaye's case were quoted in extenso. We would like to quote the relevant observations of the learned Judge of the Himachal Pradesh High Court, which include the relevant observations made by the Supreme Court in Madhu Limaye's case. "While discussing other decisions on the question, the Supreme Court has observed that if the order under consideration is of the type which would end the proceedings if a particular view is taken, but would not put the proceedings to an end if the contrary view is taken it can legitimately be considered to be an order which does not fall within the meaning of the expression 'interlocutory order'. In this connection the following observations made by the Supreme Court are very much pertinent: "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. Docs it stand to reasons, 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." We are constrained to observe that the learned Sessions Judge has ignored these observations of the Supreme Court in coming to the conclusion that the impugned orders are interlocutory orders. The answer must be given in favour of the just and reasonable view expressed by us above." We are constrained to observe that the learned Sessions Judge has ignored these observations of the Supreme Court in coming to the conclusion that the impugned orders are interlocutory orders. He was also wrong in placing reliance on some obiter observations made by a single Judge of this Court in the case Shriram and another v. Thakurdas and another4 to the effect that the order directing issue of" summons to the accused is only an interlocutory order and as such revision is not tenable. In our view, the impugned orders are not interlocutory orders and the learned Sessions Judge was wrong in rejecting the revision application on the preliminary ground that the orders are interlocutory orders. We, therefore, allow the revision application and remand the matter to the Sessions Judge to decide the revision application on merits. Revision application allowed.