SHANTA KUMAR v. VIRBHADRA SINGH — 1997 DIGILAW 371 (HP)

JUDGMENT KAMLESH SHARMA, J.—The petitioner is facing trial under Section 500 of the Indian Penal Code in the Court of the Chief Judicial Magistrate, Shimla in a private complaint filed by the respondent. The trial is at the stage of recording evidence of the respondent. The petitioner is aggrieved by the order dated 2.8.1997 whereby the order dated 23.4.1997 has been recalled and it has been directed that the application of the petitioner under Sections 91 and 94 of the Code of Criminal Procedure (hereinafter called "the Code") shall be decided afresh on merits after affording an opportunity of being heard to both the parties. The petitioner has challenged this order by filing the present Revision petition under Section 397 of the Code. 2. By the order dated 23.4.1997, the application under Sections 91 and 94 of the Code of the petitioner was allowed in the following terms without any notice to the respondent:— "23.4.1997: Present : Sh. Vinod Sharma, Advocate. Seen. The witnesses be summoned with the relevant record for the next date on deposit of DM within three days and after (not legible) the application be placed on relevant file." 3. After hearing the learned Counsel for the parties and going through the record, this Court finds that this Criminal Revision Petition is not maintainable in view of the bar under sub-section (2) of Section 397 of the Code. Under sub-section (1) of Section 397 of the Code, the High Court or any Sessions Judge has the powers of revision but subject to the limitations imposed by sub-section (2) thereof. Sub-section (2) of Section 397 of the Code is: "The powers of Revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding." 4. The words "interlocutory order" used in Sub-section (2) of Section 397 of the Code have been subject-matter of interpretation before the Supreme Court in number of cases. 5. In State of U.R v. Col. The words "interlocutory order" used in Sub-section (2) of Section 397 of the Code have been subject-matter of interpretation before the Supreme Court in number of cases. 5. In State of U.R v. Col. Sujan Singh and others, (1964) 7 SCR 734 while answering the question whether an order passed by the Special Judge allowing the petition of the respondent to call for the production of a document from the Union Government is a final order in the criminal proceedings, the learned Judges of the Supreme Court have held that the said order is only an "interlocutory order" pending the proceedings as it does not purport to decide the rights of the parties, namely, the State of U.P. and the accused. Since the order enabled the accused to have the said document duly proved and exhibited in the case, it was only a procedural step for adducing evidence. 6. In the case of Mohan Lal Magan Lal Thakkar v. State of Gujarat, AIR 1968 SC 733, the learned Judges of the Supreme Court culled out the following four points to ascertain as to whether an order is an interlocutory order:— "1. Was the order made upon an application such that a decision in favour of either party would determine the main dispute? 2. Was it made upon an application upon which the main dispute could have been decided? 3. Does the order as made determine the dispute? 4. If the order in question is reversed, would the action have to go on?" 7. The scope of Sub-section (2) of Section 397 of the Code was again considered in Smt. Parmeshwari Devi v. The State and another, 1977 Crl. LJ, 245 and it was held: "The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of Sub-section (2) of Section 397 is to keep an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This \s not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes agaisnt it. The purpose of Sub-section (2) of Section 397 is to keep an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This \s not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes agaisnt it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights." 8. In another judgment of the Supreme Court in Amar Nath and others v. State of Haryana and others, 1997 Cri.L.J. 1891, it was held that an order whereby the rights of the parties were not finally adjudicated must be taken to be an interlocutory order. The observations of the Court in Para 6 are: "....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 terms "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 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid o; the pending proceedings, may no doubt amount to interlocutary orders against which no revision would lie under Section 397(2) of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid o; the pending proceedings, may no doubt amount to interlocutary orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicata 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." 9. In the case of Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, the learned Judges, after considering the legislative intent of Sub-section (2) of Section 397 of the Code have observed in Para 12 that ordinarily and generally the expression "interlocutory order" has been understood and taken to mean as converse of the term "final order". Referring to the judgment in S. Kuppuswami Rao v. The King, AIR 1949 FC 1, the learned Judges observed in Para 13 that there may be an order passed during the course of a proceeding which may not be final, yet, it may not be an interlocutory order pure or simple as some kinds of orders may fall in between the two and bar in Sub-section (2) of Section 397 of the Code is not meant to attract such kind of intermediate orders. Applying to fourth test laid down in Mohan Lai Magan Lai Thakkar v. State of Gujarat (supra), if the order in question is reversed, would the action have to go on" the learned Judges have observed "applying that test to the facts of the instant case it would be noticed that if the plea of the appllant 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. But applying the fourth test noted at page 688 in Mohan Lais case, 1968-2 SCR 685 (AIR 1968 SC 733 at P. 738) it would be a final order". 10. 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 Lais case, 1968-2 SCR 685 (AIR 1968 SC 733 at P. 738) it would be a final order". 10. The expression "interlocutory order" has been given liberal meaning by the Supreme Court in V.C. Shukla v. State through C.B.I., 1980 Cri.L.J. 690, wherein in Para 21 it was concluded: "To begin with, in order to consture the term "interlocutory" it has to be construed in contradistinction to or in contrast with a final order. We are fortified by a passage appearing in the Supreme Court Practice, 1976 (Vol. 1 p. 853) where it is said that an interlocutory order is to be contrasted with a final order, referring to the decision of Salman v. Warner 1891(1) QB 734. In other words, the words "not a final order" must necessarily mean an interlocutory order or an intermediate order." 11. Therefore, from the above decisions of the Supreme Court, it is clear that an interlocutory order is converse of the final order. It is given during the progress of an action and does not finally dispose of the rights of the parties. The real test is that if an order is step in aid to adjudicate the rights he parties yet to be finally decided, it is interlocutory order. 12. Applying the ratio of the above referred to Supreme Court judgments and the tests laid down therein to the present case, the impugned order dated 2.8.1997 is definitely an interlocutory order and it cannot be assailed by way 3f the present Criminal Revision Petition under Section 397 of the Code. In act, by the impugned order, the Court has relegated the parties to the position before the order dated 23.4.1997 was passed. The main consideration for recalling he order dated 23.4.1997 which weighed with the trial Court is that it was passed without affording an opportunity of being heard to the respondent. The petitioner is not in any manner prejudiced by the impugned order as his application under Sections 91 and 94 of the Code is yet to be decided. 13. The main consideration for recalling he order dated 23.4.1997 which weighed with the trial Court is that it was passed without affording an opportunity of being heard to the respondent. The petitioner is not in any manner prejudiced by the impugned order as his application under Sections 91 and 94 of the Code is yet to be decided. 13. The submission of the learned Counsel for the petitioner that if, in view of the bar laid down in Sub-section (2) of Section 397 of the Code, the Criminal Revision Petition is not maintainable., this Court can exercise its inherent jurisdiction to quash the impugned order is also liable to be rejected. This point was answered by the learned Judges of the Supreme Court in Madhu Limays case (supra) wherein the following principles have been laid down in relation to the exercise of inherent powers of the High Court: "(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." 14. Therefore, in view of the specific bar under Sub-section (2) of Section 397 of the Code, there is no scope for interference in exercise of the powers under Section 482 of the Code to set aside the impugned order. 15. The contention of learned Counsel for the petitioner that once the order dated 23.4.1997 was passed, even if ex parte, it could not be recalled or reviewed and the only remedy available to the respondent was to challenge it by way of criminal revision is without any substance in view of the judgment of the Supreme Court in KM. Mathew v. State of Kerala and another, AIR 1992 S.C. 2206 wherein it has been held that a Magistrate has a judicial discretion to vary or recall his order issuing the process if the accused appears before him and shows that the complaint does not disclose any offence against him and the process was issued wrongly. It is also held that no specific provision is required for the Magistrate to drop the proceedings or rescind the process. It is also held that no specific provision is required for the Magistrate to drop the proceedings or rescind the process. 16. The judgment of the Punjab and Haryana High Court in M/s Shayam and Company and another v. Indian Overseas Bank, All India Criminal law Reporter 1992(2), 686, wherein a revision petition against the summoning order issued by a Magistrate in a complaint under Sections 420, 467 and 468, I.P.C. is held maintainable, cannot be a precedent in the present case wherein by the impugned order it has been directed that the application of the petitioner under Sections 91 and 92 of the Code for summoning the record will be decided afresh on merits after affording an opportunity of being heard to both the parties. 17. So far the judgments in Debajyoti Burman v. Dr. Nalinakshya Sanyal, AIR 1954 Cal. 216; Hah Charan v. The State, A.I.R. 1955 Punjab 17; in re Dr. Ranghotham, Accused-petitioner, AIR 1963 Andhra Pradesh 362; K. V. Rama Krishna Reddy v. The State, 1975 Cri.L.J. 980 and Churiaram Aggarwal and another v. Aggarwal Sweet Corner and another, 1990 Cri.L.J. 2460; which pertain to the right of the accused for summoning the documents under Section 91 of the Code are concerned, these are not relevant to the present case as the trial Court has yet to decide the application under Sections 91 and 94 of the Code filed by the petitioner. The judgment in R. v. Central Criminal Court, (1988) 1 All ER 677 is also not applicable to the present case as it is on the facts and circumstances of the case before the Queens Bench Division. In that case the Police wished to investigate the purchase of a particular property by member of the suspects family, who was a client of the applicants solicitors and applied ex parte to a circuit judge for an order under Section 27 of the Drug Trafficking Offences Act, 1986 requiring the solicitors to produce all files in their possession relating to the transaction. The judge made the order and the solicitors applied for judicial review to have it quashed, inter alia, on the grounds that the application of the police was heard ex parte. The judge made the order and the solicitors applied for judicial review to have it quashed, inter alia, on the grounds that the application of the police was heard ex parte. In this context, the learned judges held that in the absence of express provision in Section 27 of the 1986 Act for service of notice of the application on the recipient, it was intended that an application by the police under Section 27 for production of documents should be heard ex parte rather than inter parties. However, the recipient of an order had to be given the opportunity to apply to discharge or vary the order before it took effect. Applying the ratio of this judgment to the present case, it is manifest that the respondent has rightly approached the trial Court for varying the order dated 23.4.1997 which was passed ex parte. 18. In the result, the Revision petition is dismissed as not maintainable. Revision Petition dismissed.