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2006 DIGILAW 403 (GAU)

K. Ningkhalam Shimray v. State of Manipur

2006-04-28

P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. A. Nilamani Singh, learned senior counsel appearing for the revision Petitioner and also Mr. Jalaluddin, learned public prosecutor for the Respondent State. 2. The facts leading to the present revision may be noted in brief. In connection with the FIR No. 36(8)99 Vigilance P.S., the police submitted charge sheet against the Petitioner K. Ningkhalam Shimray, a Government servant in Criminal (P) Case No. 23 of 2000 under Section 471 / 468 / 420IPC. The accused Petitioner filed an application on 7.12.2001 before the Trial Court for dismissing the proceeding for alleged lack of sanction as required under Section 197 Code of Criminal Procedure Mr. M. Haokip, the then Chief Judicial Magistrate, Manipur upon hearing the counsel for both the sides discharged the accused vide order dated 11.1.2002 holding, inter alia, that the sanction for prosecution filed by the prosecution is bad in law/invalid and, as such, the Court is debarred from taking cognizance against the accused Petitioner. Relying on certain decisions of the Apex Court which are noted in the judgment, the learned Chief Judicial Magistrate was of the view that the question of having proper sanction or not could be considered by the trial Court as a preliminary issue before construction of charge. 3. Feeling aggrieved, the Deputy Secretary to the Government of Manipur filed Criminal Revision No. 9/2002 before the Sessions Judge, Manipur East challenging the propriety of the order dated 11.1.2002 passed by the Chief Judicial Magistrate. The said revision was admitted by the learned Sessions Judge. Thereafter, the present Petitioner filed an application before the Sessions Judge questioning the maintainability of the revision petition. It was submitted that the revision has been filed by unauthorized person in contravention of the provisions of Sections 301,302 and 24 of the Code of Criminal Procedure. It was also urged that the impugned order passed by the Chief Judicial Magistrate is an interlocutory order and against the said order no revision lies in view of the provisions of Section 397(2) Code of Criminal Procedure The Petitioner had also made submission as regards the merit of the matter. The learned Sessions Judge vide order dated 17.6.2002 rejected the first two contentions of the Petitioner as to the maintainability of the revision petition and fixed 28th June, 2002 for hearing of the revision on merit. 4. The learned Sessions Judge vide order dated 17.6.2002 rejected the first two contentions of the Petitioner as to the maintainability of the revision petition and fixed 28th June, 2002 for hearing of the revision on merit. 4. The present revision has been filed by the Petitioner challenging the order dated 17.6.2002 passed by the Sessions Judge, Manipur East. A preliminary objection was raised as regards the maintainability of the present revision, but we do not propose to enter into the controversy at this stage. We have heard the learned Counsel for both the sides and the present petition is disposed of on merit. 5. Mr. A. Nilamani, learned Senior Counsel has submitted that the revision before the Sessions Judge was filed by the Deputy Secretary, Education Department, Government of Manipur by engaging a private counsel and, as such, the revision before the Sessions Judge was not maintainable. In the impugned order, the learned Sessions Judge has considered the above submission and referring to the provisions in Section 397 Code of Criminal Procedure held that the revision is in order, Section397 Code of Criminal Procedure reads as follows: 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 proceeding 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 Session Judge for the purpose of this Sub-section and of Section 398. (2) The power 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. (2) The power 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. (3) If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. 6. In a catena of decisions, the Apex Court has held that whenever an illegality or impropriety of an order passed by the subordinate Court is brought to the notice of the revisional Court, the revisional Court should call for the records and examine the same. In other words, a revision can be entertained suo-moto. In the case of Municipal Corporation of Delhi v. Girdharilal reported in AIR 1991 SC 1169, the order of discharge passed by the Trial Court was found to be illegal, but the revision was in the meantime barred by the period of limitation and the Apex Court directed the High Court to exercise suo-moto power of revision by observing that it cannot allow to perpetuate illegality and miscarriage of justice. Hence, in a criminal matter and, more particularly in respect of criminal revision, the case cannot be thrown out simply on the ground that the lawyer appearing for the Petitioner was not properly appointed. We, therefore, find no force in the above submission of the Petitioner. 7. The next submission of the learned Counsel is that the impugned order of the Chief Judicial Magistrate is interlocutory order and, as such, in view of the provisions of Sub-section (2) of Section397 Code of Criminal Procedure as quoted above, no revision lies. In support of this submission, the learned Counsel has drawn out attention to the interpretation of interlocutory order given by the Apex Court in the case of V.C. Shukla v. C.B.I. reported in AIR 1980 SC 962 . The Apex Court observed: 22. To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia J. in the case of Madhu Limaye v. State of Maharastra clearly meant to convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Secundum. It is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in Section 11(1) of the Act. Wharton's Law Lexicon (14th Edition, p. 529) defines interlocutory order thus: An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties. 23. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Code of Criminal Procedure or any other statute. That is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in Section 11(1) of the Act. 8. The learned Public Prosecutor has submitted that by the impugned order, the learned Chief Judicial Magistrate has discharged the accused thereby putting an end to the prosecution lodged against the accused and, as such, by no stretch of imagination, it can be termed as interlocutory order. Shri A. Nilamani, learned senior counsel on the other hand submits that die discharge of the accused for lack of sanction is not a final say in the matter as because the prosecution may obtain fresh sanction and initiate criminal prosecution again. Shri A. Nilamani, learned senior counsel on the other hand submits that die discharge of the accused for lack of sanction is not a final say in the matter as because the prosecution may obtain fresh sanction and initiate criminal prosecution again. Whether the prosecution can be lodged again after obtaining fresh sanction or not is altogether a different question, but so far the present proceeding is concerned, we do find that it has come to an end in view of the order dated 11.1.2002 passed by the Chief Judicial Magistrate, Imphal. 9. We further find that in the case of Haryana Land Reclamation and Development Corporation v. State of Haryana reported in 1990 (2) JT 328 , the Apex Court held that an order of discharge by the Chief Judicial Magistrate is not an "interlocutory order" within the meaning of Section 397(2) Code of Criminal Procedure The dismissal of the revision by the High Court was set aside and the matter was remanded back to the High Court for hearing the petition on merit. 10. In view of the above, we hold that the order dated 11.1.2002 passed by the Chief Judicial Magistrate was not an interlocutory order and revision was maintainable against the said order. 11. So far the question of merit of the revision is concerned, we do not propose consider the same as the matter is pending before the Sessions Judge. The learned Counsel for the Petitioner has drawn our attention to the observation of the Apex Court in the case of Ashok Sahu v. Gokul Saikia reported in 1990 (Supp) SCC 41. The facts in Ashok Sahu (supra) were altogether different as in the above case the question was whether sanction is required or not. 12. In view of the what is stated above, we dismiss this revision petition and direct the Sessions Judge, Manipur East to dispose of the Criminal Revision No. 9/2002 pending before him. The interim order dated 23.8.2002 stands vacated. The Petitioner and the State of Manipur are directed to appear before the learned Sessions Judge, Manipur East on 30th of May, 2006. Petition dismissed