Sessions Judge Sawai Madhopur v. Dashrath Singh — 1996 DIGILAW 831 (RAJ)

Honble SAXENA, J. — The learned Sessions Judge, Sawai Madhopur has made the following reference under Sec. 395(2) Cr.P.C. for authoritative decision of this Court :— (a) Whether an order taking cognizance is an interlocutory order within the meaning of Sec. 397(2), Cr.P.C. or is a final order ?; and (b) Whether a revision petition against such an order taking cognizance is legally maintainable or not? (2) Now briefly, the relevant facts :- Reference Petition No. 4/1991 Shambhu Singh filed a criminal complaint dated 10.6.85 against accused Dashrath Singh and others before the Additional Munsif & Judicial Magistrate No. 2 Sawai Madhopur for offences under Sec. 451 & 323, IPC. The learned Magistrate under Sec. 156(3) Cr.P.C. transmitted the criminal complaint for registration and investigation of the case to the Station House Officer, Police Station Chouth Ka Barwara, who after due investigation submitted a negative report. Complainant presented a protest petition whereupon the learned Magistrate after recording statements of Shambhu Singh and his witnesses by his order dated 7.10.1987 took cognizance against accused persons for offences under Secs. 451 and 323, IPC. Aggrieved by that order, accused Dashrath Singh preferred Cr. Revision Petition No. 34/89 before the Sessions Judge, Sawai Madhopur. It was urged on behalf of the learned Public Prosecutor that the impugned order taking cognizance against the accused was an interlocutory order and as such, revision petition was legally not maintainable in view of the provisions of Sec. 397(2) Cr. P.C. In support of his contention, the Public Prosecutor relied upon the judgment rendered on 5.12.1990 by Honble Mr. Justice B.R. Arora in Chouthmal vs. State,(S.B. Cr. Revisions Petition No. 88/90) (1), wherein it was held that the order taking cognizance was an interlocutory one and revision petition did not lie against such an order. On the other hand, on behalf of the accused persons, Judgment dated 12.8.1991 passed by Honble Mr. Justice N.L. Tibrewal in S.B. Cr./ Misc. Petition No. 542/89 Mohd. Yasin vs. State of Rajasthan (2) was cited wherein relying on the law laid down in Amar Nath vs. State of Haryana (3), it was held that an order taking cognizance is final order and as such, the same is revisable. The learned Sessions Judge in his order of reference dated 20.11.1991 quoting these two judgments, wherein two divergent opinions were given by different Single Benches of this Court, has submitted this reference for. Cr. The learned Sessions Judge in his order of reference dated 20.11.1991 quoting these two judgments, wherein two divergent opinions were given by different Single Benches of this Court, has submitted this reference for. Cr. Misc. Petition No. 2/1994 (3) The Additional Registrar (Classification) if this Court was directed to find out cases, in which similar point of law was involved and in compliance thereof, S.B. Cr. Misc. Petition No. 2/94 Ganni Khan vs. State of Rajasthan, filed under Sec. 482, Cr P.C. has been tagged with this reference petition No. 4/1991. (4) In Cr. Misc. Petition No. 2/94, complainant Kasam Khan filed a criminal complaint dated 18.2.87 under Sections 120-B and 498- A, IPC against Ganni Khan and 7 others in the Court of Munsif & Judicial Magistrate. Nawalgarh, who after recording evidence under Sections 200 & 202, Cr. P.C. took cognizance against accused persons for offence under Sec. 498A IPC. Accused persons filed the said revision petition before the Sessions Judge, Jhunjhunu: who by his order dated 12.11.1993 held that the revision was not legally maintainable because the order taking cognizance was an interlocutory order and accordingly dismissed the revision petition. The accused persons have, therefore, filed this Criminal Misc. Petition under Sec. 482, Cr.P.C. (5) Since the matter involves important question of law, a general notice was given to the Bar. (6) We have heard Shri S.M. Ali, Additional Advocate General and Shri R.S. Agrawal Additional Government Advocate cum Public Prosecutor, Shri S.R. Bajwa Senior Advocate assisted by Shri V.R. Bajwa for accused Dashrath Singh, Shri A.K. Gupta for accused Ganni Khan and Sarva Shri P.K. Sharma & R.S. Chauhan Intervenors. (7) It has been strenuously urged by Sarva Shri Ali and Agarwal that Sec. 397(2) Cr.P.C. has been incorporated with an avowed purpose of cutting out delays and ensuring that the accused persons get a speedy fair trial without much delay. They have submitted that the Magistrate after applying judicial mind takes cognizance under the provisions of Sec. 190 under Chapter XIV of the Cr.P.C. either upon receiving a complaint of facts, which constitute such offence, or upon a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The accused persons are summoned and then their plea is recorded in respect of the accusation made against them or on the charge. If the Magistrate after considering the record finds that there are sufficient grounds to proceed against the accused then after recording the plea, the trial against the accused commences. The learned Public Prosecutors have, therefore, asserted that the order taking cognizance does neither determine the principal matters in dispute, nor decide final rights of the parties, and as such an order is purely an interlocutory one against which no revision is legally maintainable in view of the specific provisions of Sec. 397(2), Cr.P.C. They have placed reliance on the decisions in Khacheru Singh vs. State of U.P.(4) & Hasan Bandu Bhai Shaikh vs. K.T. Kulkarni (5). (8) On the other hand, Sarva Shri S.R. Bajwa, A.K. Gupta, P.K. Sharma, R.S. Chauhan and other learned Advocates have vehemently urged that as per principles of the law enunciated by the Apex Court in Amar Nath vs. State of Haryana (supra), the term interlocutory order in Sec. 397(2) Cr. P.C. has been used in a restricted sense and not in any broad or artistic sense; that 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; that 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 Sec. 397 Cr. P.C. They have also placed reliance on the decisions in Madhu Limaya vs. State of Maharashtra (6), Jarnail Singh vs. State of Rajasthan (7) and Mohd, Yasin vs. State of Rajasthan (supra). (9) We have given our most anxious and careful consideration to the rival submissions made at the bar. Sec. 397 Cr.P.C. runs as under :- "Sec. 397. P.C. They have also placed reliance on the decisions in Madhu Limaya vs. State of Maharashtra (6), Jarnail Singh vs. State of Rajasthan (7) and Mohd, Yasin vs. State of Rajasthan (supra). (9) We have given our most anxious and careful consideration to the rival submissions made at the bar. Sec. 397 Cr.P.C. runs as under :- "Sec. 397. Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceedings before any inferior criminal court situate within its or his local 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation:- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction , shall be deemed to be inferior to the Sessions Judge, for the purposes of this sub-section and Sec. 398. (2) The powers of revision conferred by Sub-sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this Section has been made by any person either to the High Court or the Sessions Judge, no further application by the same person shall be entertained by the other of them." (10) A careful look to these provisions indicates that sub-sec.(1) of Sec. 397 empowers the High Court or any Sessions Judge to call for and examine the record of any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or priority of any finding, sentence or order recorded or passed, as to the regularity of any proceedings of such Court. Sub-sec.(2) of this Section mandates that the power of revision conferred by sub-sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Sub-sec.(2) of this Section mandates that the power of revision conferred by sub-sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (11) The expression interlocutory order has not been defined in the Code of Criminal Procedure, the Apex Court in Amar Naths case (supra) interpreting the term interlocutory held as under :- "The term interlocutory order is a term of well known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters of Patent of the High Courts and other like statutes. In Websters 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 that the term interlocutory order in Sec. 397(2) of the 1973 Code has been used in a restricted sense and not in 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 other 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 the be High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Sec. 397 of the 1973 Code. Thus, for instances, 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 Sec. 397(2) of 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular respect of the trial cannot be said to be interlocutory order so as to outside the purview of the revisional jurisdiction of the High Court. " (12) In that case, the F.I.R. mentioned a number of accused persons including the appellants as being participated in the occurrence, which resulted in death of the deceased. " (12) In that case, the F.I.R. mentioned a number of accused persons including the appellants as being participated in the occurrence, which resulted in death of the deceased. The police after due investigation, submitted a charge-sheet against other accused persons except the appellants, against whom the police opined that no case at all was made out. The Magistrate after perusing the evidence recorded by the investigation accepted the negative report of the police and set them at liberty. The revision petition filed by the complainant before the Sessions Judge against the order of the Magistrate releasing the appellant, was dismissed. The informant then filed regular complaint against all the accused persons including the appellant, which was also dismissed on merits. The Sessions Judge, however, in revision set aside the order dismissing the complaint and ordered further inquiry. The learned Magistrate on receiving the order of the Sessions Judge summoned the appellants straight away, which meant that the appellants were to put on trial. The petition under Sections 482 and 397, Cr.P.C. against the order of the Magistrate was dismissed by the High Court on the ground that the order summoning the appellant was an interlocutory one. Their lordships of the Apex Court interpreting the term interlocutory order in Sec. 397, Cr.P.C. held that the order of the Magistrate summoning the appellants was one, which was a matter of moment, that 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, could not 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 and accordingly, it was held that the revision against such an order was fully competent under Sec. 397(1) or under Sec. 482, because the scope of both these sections in a matter of this kind was more or less the same. Thus, the order taking cognizance of an offence against the accused persons is not an order of interim or purely temporary in nature. On the other hand, it does decide or touch the important rights or liabilities of the parties. Such an order also substantially affects the rights of the parties. Thus, the order taking cognizance of an offence against the accused persons is not an order of interim or purely temporary in nature. On the other hand, it does decide or touch the important rights or liabilities of the parties. Such an order also substantially affects the rights of the parties. (13) In Madhu Limayes case(supra), the appellant was alleged to have made certain statements and handed over a press hand-out containing allegedly some defamatory statements concerning Shri A.R. Antulay, the then Law Minister of the Government of Maharashtra. The State Government decided to prosecute the appellant for offence under Sec. 500, IPC, and accorded necessary sanction. On the complaint filed by the Public Prosecutor the Sessions Judge took cognizance of the offence under Sec. 199(2) Cr. P.C. 1973. The appellant contended 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 but only in his personal capacity and that the sanction was not proper. The Sessions Judge rejected those contentions. On revision the High Court held that the revision was not maintainable under Sec. 397(2), Cr. P.C. since the order of the Sessions Judge was only interlocutory order. The appellant approached the Supreme Court and contended that the impugned order was not interlocutory one and that 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 decision in Amar Naths case (supra) and observed as under :- "9. In most of the cases decided during several decades the inherent powers of the High Court has been invoked for quashing of a criminal proceeding on one ground or the other. Some times 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 farming charges 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 the Court. In the back ground aforesaid, we proceed to examine as to what is the correct position of law after the introduction of a provision like sub-section (2) of Sec. 397 in the 1973 Code. "10 As pointed out in Amar Naths case ( AIR 1977 SC 2185 ) 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 interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by interdicting sub-section (2) in Sec. 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 Sec. 482, however, it would follow that nothing in the Code, which would include Sub-sec. (2) of Sec. 397 also, shall be deemed to limit or affect the inherent powers of the High Court. But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught once 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 Sec. 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 or the other principles enunciated above, the inherent owner 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, 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 securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Sec. 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, vexatious or as being without jurisdiction. Take for example a case where a prosecutions launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred in 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 calls for exercise of the power of the High Court in accordance with Sec. 482 of the 1973 Code, even assuming, although not accepting that invoking the revi-sional power of the High Court is impermissible." "11. In R.P. Kapur vs. State of Punjab ( 1960(3) SCR 388 = AIR 1960 SC 866 ) 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. In R.P. Kapur vs. State of Punjab ( 1960(3) SCR 388 = AIR 1960 SC 866 ) 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 Judge of pages 392-93 of SCR) :(at p. 889 of AIR):— "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 possible, desivable 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 to the first information report or the complaint, even if they are taken at their face value and accepted in their entirely, do not constitute the offence alleged; in such case no question of appreciating evidence arise, 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 held 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 such cases, it would be legitimate for the High Court to held 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 case falling under this category the allegations made against the accused person do constitute and offence alleged but there is either no legal 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 or may not support the accusation in question. In exercising its jurisdiction under Sec. 561-A of 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 the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Courts 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 Sec. 397(2) of the new Code. It still holds good in accordance with Section 482." "12. 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 Halsburys Laws of England at page 742-, however, it has been stated in para 1606:-".....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 the two words must therefor 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. The meaning of the two words must therefor 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 it 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 interlocu-tory. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals." "15. In Amar Naths case ( AIR 1977 SC 2185 ) reference has been made to the decision of this Court in Mohan Lal Thakcer vs. State of Gujarat (AIR 1968 SC 73).After an enquiry under Sec. 476 of the 1989 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 Art. 134(l)(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 one other learned Judge. In the majority decision four tests were called out from some English decisions. They are found enumerated at page 688 (of SCR) : (at Page 737 of AIR). 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 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 Kuppuswamis case (AIR 1949 FC 1) such an order will not be a final order. If however he loses on the merits of the preliminary point the proceeding will go on. Applying the test of Kuppuswamis case (AIR 1949 FC 1) such an order will not be a final order. But applying the fourth test noted at page 688 in Mohan Lals case(1968-2 SCR 685 = AIR 1968 SC 733 at page 738) it would be a final order. The real point of distinction, however, is to be found at page 693(of SCR) : (at p. 738 of AIR) in the judgment of Shelat. J. The passage runs thus:- "As observed in Ramesh vs. Patni, (1966) 3 SCR 198 = ( AIR 1966 SC 1445 ) 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 the 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 final order within the meaning of Art. 134(1) (c). While Bachawat. J. said at page 695(of SCR): (at p. 739 of AIR): "It is merely a preliminary step in the prosecution and therefore an interlocutory order." Even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in Mohan Lals case, in our judgment, undoubtedly, an order directing the filing of a complaint after enquiry made under a provisions of the 1973 Code, similar to Sec. 476 of the 1898 Code will not be an interlocutory order within the meaning of Sec. 397. (2) The order will be clearly revisable by the High Court. We must however, hasten to add that the majority decision in Mohan Lals case treated 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 Lals case. 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 Lals 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 Sec. 397(2)." "We may also refer to the decision of this Court in Parmeshwari Devi vs. State (1977) 2 SCR 160 = AIR 1977 SC 403 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 Sec.397(2) Referring to a passage from the decision of this Court in Mohan Lals case ( AIR 1968 SC 733 ) the passage which is to be found in Halsburys Laws of England, Vol-ume 22, it has been said by Shinghal, J., delivering the judgment of the Court at page 164 ( of SCR) : (at p. 406 of AIR):- "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 Lals case may be open to debate or difference. One such example is to be found in the decision of this Court in Prakash Chand Agrawal vs. M/s. Hindustan Steel Ltd. (1971) 2 SCR 405 = AIR 1971 SC 2319 wherein it was held that an order of the High Court setting aside an exparte decree in the suit and restoring the suit to the file of the trial Court is not a final order within the meaning of Art. 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 aside would have finally ended and on some of the principles called out by the majority in Mohan Lals case, such an order would have been a final order. We are, however, not under any necessity to enter into this controversial arena. 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-sec. (2) of Sec. 397 of the 1973 Code." "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 Raos case (AIR 1949 FC 1) 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 Sec. 203 or under Sec. 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, other wise it will make Sec. 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 Sec. 398. It is 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." Their Lordships further observed that a complaint is dismissed under Sec. 203 or 204 (4) Cr. PC or the Court holds the proceeding to be void or discharges the accused, revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Sec. 398 Cr.P.C. otiose, and 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? Their Lordships also observed that the legislature left the power to order further inquiry in tact in Sec. 398 and that is not then in consonance with the sense of justice to leave in tact 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 Apex Court then held that the answer must be given in favour of the just and reasonable view expressed by it and accordingly the Apex Court allowed the appeal, set aside the judgment and order of the High Court and remitted the case back to it to dispose of the appellants revision petitioner on merits in accordance with law. (14) In V.C. Shukla vs. State, through CBI (8), it has been held that the words ) interlocutory order used in Sec. 397(2), CrPC relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding; that the object seems to be to cut down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction, and having regard to the very large ambit and range of the Code of Criminal Procedure, the expression interlocutory order would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. It has been reiterate that the term interlocutory order used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the base contained in Sec. 397(3), CrPC would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts. It has also been held that the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final and the same, however, could not be said of the Special Courts Act which was meant to cover only specific number of crimes and criminal sand the objective attained was quickest dispatch and speediest disposal. (15) Thus, the expression interlocutory order cannot be held as invariably being converse of the words final order. (15) Thus, the expression interlocutory order cannot be held as invariably being converse of the words final order. In Jarnail Singh vs. State of Rajasthan (FB) (supra) this Court held that in the contest of Sec. 397(2), Cr.PC expression interlocutory order would not embrace orders, which are of moment and vitally after the accused and that 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 and that it would be immaterial if the rejection of such plea does not by itself terminate the proceedings and after rejection, the proceedings continue. The Full Bench envisaged a case where the accused raised a peal 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 a case where the accused been previously tried on that very charge by a competent court and has been acquitted or a case, where the Magistrate had no jurisdiction to take cognizance. Thus viewed, if the order taking cognizance is held to be interlocutory order then in such cases, the accused will have to appear before the Court of trial unnecessarily and to face harassment and humiliation. Therefore, in our considered opinion, the order taking cognizance is an order of moment, which substantially and effectively affects the rights and liability of the parties and in these circumstances, such an order cannot be termed as interlocutory order, because such an order is rather an intermediate or quasi final order and such orders are clearly revisable. Therefore, in our considered opinion, the order taking cognizance is an order of moment, which substantially and effectively affects the rights and liability of the parties and in these circumstances, such an order cannot be termed as interlocutory order, because such an order is rather an intermediate or quasi final order and such orders are clearly revisable. However/it cannot be held as a rule of thumb that all orders of taking cognizance of offence against the accused are interlocutory and legally not revisable On the other hand, the Sessions Judge or the High Court at the time of admitting such revision petition for hearing, should carefully find out as to whether such an order has been passed without application of mind by the Magistrate or that the cognizance has been taken after the expiry of the period of limitation or that the Magistrate had the jurisdiction to take cognizance of such an offence or that even if the contents of the FIR or criminal complaint and the evidence collected by the investigating officer or recorded by the Magistrate under Secs. 200 & 202, CrPC are taken to be true on its face value, still then no offence is prima facie made out and only in such contingencies or the like, such a revision petition should be admitted for hearing. (16) We may also mention here that in Chouthmal vs. State of Raj. (supra), complainant Chouthmal had filed a criminal complaint against Prahalad and others for offence under Sec. 379, IPC before the Munsif and Judicial Magistrate Merta. The report of theft of the bus had already been lodged by Chouthmal at police station Merta and after necessary investigation, the police had submitted a final report. The learned Magistrate after considering final report, the criminal complaint and the evidence collected by the police ,took cognizance against the accused by his order dated 6.2.1986 against which, accused persons preferred a revision petition before the Sessions Judge, Merta, who set aside the order of the Magistrate taking cognizance and dismissed the criminal complaint filed by complainant Chouthmal. Against that order, a revision petition was filed in the High Court. Against that order, a revision petition was filed in the High Court. It was contended by complainant Chouth Mal before the learned Single Bench of this Court that the order taking cognizance was interlocutory against which revision was legally not maintainable and as such the learned Sessions Judge had no jurisdiction and as such his order passed in revision deserved to be set aside. The learned Public Prosecutor did not opposite that contention. The learned Single Bench therefore, held that it was not disputed that the order taking cognizance was interlocutory order and that the revision petition was not maintainable before the Sessions Judge, allowed the revision petition and set aside the order of the Sessions Judge and restored the order of taking cognizance passed by the learned Magistrate. Apparently, the learned Single Bench of this Court did not take into consideration the well crystallized principles of law enunciated by the Apex Court in Madhu Limays case (supra). Moreover, since it was not disputed by the learned Public Prosecutor, the learned Single Bench did not also interpret the expression interlocutory order used in Sec. 397(2) Cr.P.C. Therefore in our considered opinion, the order dated 05/12/1990 in Chouthmals case (supra) passed by the Honble Mr. Justice B.R. Arora does not project the correct proposition of law. nor in that order any valid, just and proper reason has been given in support of the contention that the order taking cognizance was an interlocutory one. (17) On the other hand, in Mohd Yasins case(supra), the learned Single Judge relying on the law did laid down in Madhu Limayes case (supra) and Amar-naths case (supra), has held that an order taking cognizance is final order. With respect, we may say that this view is also not totally correct because the order taking cognizance in its strict sense in not final order but it is also not an interlocutory order. On the other hand, it is intermediate or quasi final order, which is revisable and the revision petition is not barred by provisions of Sec. 397 (2) ,Cr.P.C. (18) We may also point out here that this Court has consistently taken a view that the order taking cognizance or issuing process against accused under Sec. 204, Cr.P.C. is not an interlocutory order and that revisional powers can be exercised if peculiar facts require the probe. (19) In Koona Ram vs. State of Rajasthan, (9), Honble Miss Justice Kanta Bhatnagar, as, she then was, relying on the principles of law propounded by the Apex Court in Amarnaths case (supra) held that an order not being final need not always be interlocutory because there may be orders, which may be called intermediary or the order relating to the matters of moment. It was further held that the order issuing process against an accused is not in every case the type of interlocutory order so as to attract the embargo of Sec. 397(2) of the Code. It was pointed out that what the Courts are expected to take into consideration is that the purpose of this provision may not be frustrated by entertaining revision petition against every such order so as to allow the delaying tactics. Revisional power can be exercised if the peculiar facts to the case require probing in to the matter by the revisional court in order to see that there is no miscarriage of justice and the accused are not put on a trial without there being a prima facie case against them and the Magistrate has properly applied his mind to the record available while exercising the discretion. (20) It was reiterated that there is no absolute bar for entertaining such a revision petition and the maintainability of the Revision petition would depend upon the facts and circumstances of a given case. We fully agree with the views expressed by the learned Single Bench in Koona Rams case(supra). (21) Now we consider the cases relied upon by the learned Additional Advocate General and Additional Government Advocate. In Khacheru Singh vs. State of Uttar Pradesh (supra), the Magistrate after taking cognizance of the offence had issued summons to accused Satyavir Singh and in revision petition, the Sessions Judge set aside order of the Magistrate. The High Court of Allahabad also affirmed the order of the Sessions Judge. Complainant Khacheru Singh filed special leave petition before the Supreme Court. The High Court of Allahabad also affirmed the order of the Sessions Judge. Complainant Khacheru Singh filed special leave petition before the Supreme Court. The Apex Court without expressing any opinion on the merits of the case, held that it was difficult to appreciate why the order issuing summons to the accused should be quashed and allowing the Special Leave Petition, set aside the order of the Sessions Judge and the High Court restoring the order of the Magistrate upholding that if eventually he comes to the conclusion that no offence was made out against accused Satyavir Singh it will be open to him to discharge or acquit the said accused. Apparently the Apex Court did not decide that the order taking cognizance issuing summons was an interlocutory order and that such an order was not revisable. Therefore, Khacheru Singhs case (supra) has no bearing to the controversy involved in this reference. (22) Another case relied by the learned Additional Advocate General is -Hasan Bandubhai shaikh vs. T. Kulkarni (supra), wherein the Bombay High Court relying on the decision in Khacheru Singhs case(supra) held that an order of the Magistrate issuing process is interlocutory,hence not revisable. With utmost respect, we may say that the learned Judge has not taken into consideration the observations made by the Apex Court in the right context nor it has taken into consideration the law laid down by the Apex Court regarding the correct interpretation of the expression interlocutory order incorporated in Sec. 397(2), Cr.P.C. as propounded in Amarnaths and Madhu Limayes cases (supra). Besides this, the view taken by the learned Single Judge of the Bombay High Court is not in consonance with the consistent view taken by this Court. Therefore, this decision which has been passed per incuriam, does not have any binding force. (23) In K.M. Mathew vs. State of Kerala (10), a news item was published in the Daily News Paper Malayala Manorama against respondent, who was an advocate. His case was that the hews item was published with the sole object of ridiculing and defaming him. He lodged a complaint before the court of Additional Judicial Magistrate against the Chief Editor, the Printer and Publisher under Sections 500 and 34 IPC. The Magistrate Examined the complainant on oath and took cognizance against K.M. Mathew and issued summons to him, who upon service appeared and pleaded not guilty. He lodged a complaint before the court of Additional Judicial Magistrate against the Chief Editor, the Printer and Publisher under Sections 500 and 34 IPC. The Magistrate Examined the complainant on oath and took cognizance against K.M. Mathew and issued summons to him, who upon service appeared and pleaded not guilty. Before the evidence was recorded, K.M. Mathew requested the Magistrate to drop the proceedings against him on the ground that there was no allegation against him that he was responsible for the selection of the news item and publication thereof nor there was any averment in the complaint that the Chief Editor had perused the material or edited before its publication or that the matter was published with his knowledge. After hearing the parties, the Magistrate accepted the plea of K.M. Mathew and dropped proceedings against him. The complainant filed revision petition before the Kerala High Court, which allowed the same and set aside the order of the Magistrate. In S.L.P. filed by KM. Mathew, the Apex Court held that the view taken by the Magistrate was too technical and it rested its conclusion solely on the procedural requirements of the trial of a summons case. The Apex Court held that the power to drop proceedings against accused cannot be denied to the Magistrate; section 204 Cr.P.C., indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused; when the accused enters appearance in response to the summons, the Magistrate, section 204 Cr.P.C. indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused; when the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code but the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime;and if there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. The Apex Court then held that it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued and that the Magistrate may drop proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. The Apex Court further held that it is the judicial discretion of the Magistrate and no specific provision is required for him to drop the proceedings or rescind the process. It was also held that the order issuing the process is an interim order and not a judgment and it can varied or recalled. It was only in view of the aforesaid peculiar facts that the Apex Court observed that the order issuing process is an interim order and did not decide or conclude that the order taking cognizance or issuing process to the accused is an interlocutory order within the meaning of Sec. 397(2), Cr.P.C, against which a revision petition was barred. There- fore K.M. Mathews case(su-pra) also does not help in upholding the contention raised by the Additional Advocate General that the order taking cognizance is an interlocutory one and not revisable. (24) Hence for the reasons mentioned above, we are of the considered opinion that the observations made in Chauthmals case (supra) by the learned Single Judge in his order dated 5.12.90. in S.B. Cr. Revisions Petition No.88/90 to the effect that the order taking cognizance is interlocutory and no revision lies against such an order, is not correct and the law laid down in the said case is hereby over-ruled. in S.B. Cr. Revisions Petition No.88/90 to the effect that the order taking cognizance is interlocutory and no revision lies against such an order, is not correct and the law laid down in the said case is hereby over-ruled. We hold that the view taken by another learned Single Judge in Koona Rams case (supra) is the correct law regarding interpretation of the expression interlocutory appearing in Section 397(2), Cr.P.C. and that the order taking cognizance is an intermediary order but positively not an interlocutory order and that against such an order a revision petition is maintainable under Sec.397 (2) Cr.P.C. However, as a word of caution, it is reiterated that the Sessions Judges/Single Bench of the High Court before entertaining such revision petitions for hearing shall carefully examine the record and find out as to whether such an order has been passed without application of mind or whether the cognizance has been taken within a period of limitation or is barred by limitation or whether even if the facts mentioned in the FIR/evidence collected by the Investigating Officer or in the criminal complaint and the evidence recorded by the Investigating Officer or in the criminal complaint and the evidence recorded by the Magistrate under Secs. 200 & 202 Cr.PC taken to be true in its totality do not disclose or prima facie make out any offence, so as to prevent indiscriminate and frivolous revision petitions against such orders resulting in the delay in expeditious trial. (25) This reference is answered accordingly and in Reference No. 4/91, the learned Sessions Judge, Sawai Madhopur is directed to decide Criminal Revision Petition No. 34/89 filed before him expeditiously keeping in view the afore-mentioned observations. (26) In S.B. Cr. Misc. Petition No.2/94 the learned Sessions Judge, Jhunjhunu by his order dated 12.10.93 has simply dismissed the revision petition No. 134/87 filed by the accused persons holding that the impugned order was being interlocutory order, the revision petition against it was legally not maintainable and thus has not decided the revision petition on merits. We, therefore, allow Cr.Misc. peti-tion No. 2/94 and set aside the impugned order and remit the case to the learned Sessions Judge, Jhunjhunu with the direction that he should decide Cr. Revision Petition No 134/87 on merits in accordance with law.