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1982 DIGILAW 209 (ORI)

DURGA PRASAD SAO v. STATE OF ORISSA

1982-12-22

B.K.BEHERA

body1982
JUDGMENT : B.K. Behera, J. - The Petitioner assails the order passed by Mr. B.N. Das, Sessions Judge, Sundargarh, allowing an application in revision made by the State against the order passed by Mr. H.B. Das, Sub-divisional Judicial Magistrate, Panposh, Rourkela, admitting the Petitioner to bail. Mr. Pradeep Mohanty, the learned Counsel for the Petitioner, has submitted that an order relating to bail is an interlocutory one and therefore, no revision lies in view of the provisions contained in Section 397(2) of the Code of Criminal Procedure {the Code, for short}. Reliance has been placed by him on the principles laid down in Amar Nath and Others Vs. State of Haryana and Another. Mr. P.K. Mohanty, the learned Additional Government Advocate, has submitted that in view of the statutory bar for a revision against an interlocutory order, the revision was not competent. He has further submitted that it is open to the State to move an application for cancellation of bail either before the learned Sub-divisional Judicial Magistrate u/s 437(5) of the Code or before this Court or the Court of Session u/s 439(2) of the Code. 2. The contention raised by Mr. Pradeep Mohanty must prevail and the concession made by the learned Additional Government Advocate is well-founded. 3. Section 379(2) of the Code provides that the powers of revision conferred by Sub-section (1) of that section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The interpretation of the expression "interlocutory order" came up for consideration in Amar Nath and Others Vs. State of Haryana and Another, and their Lordships of the Supreme Court observed and held: ...It seems to us that the term 'interlocutory order' in Section 397(2) of the 1973 Code has been used 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 rights 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 of the Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for records and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie u/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. 4. Petition for Leave to Appeal (Criminal) Nos. 2120-21 of 1982 were made in the Supreme Court against an order passed by this Court on August 10, 1982 refusing bail in Criminal Miscellaneous Case No. 509 of 1982 of this Court. These matters were heard with applications for bail and Criminal Miscellaneous Petition Nos. 3708 arid 3705 of 1982. Their Lordships of the Supreme Court dismissed the petitions by making the following observations: Special Leave petitions are dismissed as these are directed against interlocutory order of the High Court refusing bail. There will be liberty to the Petitioners to renew applications for bail before the High Court. Thus the Supreme Court has observed in the aforesaid matters that the order refusing bail is an interlocutory one. 5. Generally, applications for bail or for cancellation of bail are made at the stage of investigation or during a trial Successive applications for bail do lie. As an order granting or refusing bail is an interlocutory one within the meaning of Section 397(2) of the Code, no revision lies against such order in view of the clear statutory bar contained therein. The learned Sessions Judge went legally wrong in setting aside an order admitting the Petitioner to bail while exercising his powers of revision in an application made in that behalf by the State. The impugned order had been passed without jurisdiction. It is necessary in the interests of justice and to prevent an abuse of the process of the court that the order in question is set aside by this Court in exercise of its inherent jurisdiction u/s 482 of the Code. 6. I would allow the revision and vacate the order passed by the learned Sessions Judge. Final Result : Allowed