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Madhya Pradesh High Court · body

2016 DIGILAW 1144 (MP)

Hari Narayan Sharma v. State Of M. P.

2016-12-13

RAJENDRA MAHAJAN

body2016
ORDER : Shri Vivek Shukla, learned counsel for the applicant. Shri P. K. Pandey, learned Government Advocate for the respondent-State. With the consent of the learned counsel for the parties, the matter is heard finally at the motion stage itself. The applicant has filed this petition under section 482 of the Criminal Procedure Code against the order dated 4-3-2015 passed in an unregistered criminal revision, whereby the learned Sessions Judge Sidhi has dismissed the revision filed by the applicant under section 397, Criminal Procedure Code in limine holding that the order dated 21-2-2015 passed by the Court of Judicial Magistrate First Class, Rampur Naikin, District Sidhi in Criminal Case No. 271/2013 (for short 'the case') is an interlocutory order in nature. 2. The brief facts of the case for just and proper adjudication of this petition are thus :— The applicant has been facing trial in the case for the offences punishable under sections 471, 477-A and 409, Indian Penal Code. In the course of trial of the case, the prosecution has filed an application under section 216, Criminal Procedure Code praying that there is prima facie evidence on record that the applicant has committed an offence punishable under section 420, Indian Penal Code. Therefore, the charge of said section be also framed against him. The applicant submitted a written reply to the application opposing the framing of charge under section 420, Indian Penal Code on various grounds. On 21-2-2015, the learned trial Magistrate heard counsel for the parties and allowed the application. On the selfsame day, he has framed the charge against the applicant under section 420, Indian Penal Code. 3. Feeling aggrieved thereby, the applicant filed the revision before the Sessions Court. The learned Sessions Judge has dismissed the revision in limine vide the impugned order on the ground that framing of an additional charge in exercise of the power under section 216, Criminal Procedure Code is an interlocutory order in nature. Therefore, no revision shall lie against the order dated 21-2-2015 in view of the provisions of section 397(2) of the Criminal Procedure Code. 4. Being aggrieved by the impugned order, the applicant has approached this Court by filing this petition under section 482, Criminal Procedure Code. 5. Therefore, no revision shall lie against the order dated 21-2-2015 in view of the provisions of section 397(2) of the Criminal Procedure Code. 4. Being aggrieved by the impugned order, the applicant has approached this Court by filing this petition under section 482, Criminal Procedure Code. 5. Learned counsel for the applicant submits that the framing of altogether a new charge under section 420, Indian Penal Code in exercise of power under section 216, Criminal Procedure Code is not an interlocutory order because a valuable legal right accrues to the applicant to assail the order on the ground that the charge has been framed without prima facie evidence on record. Therefore, he cannot be put on trial for such charge unnecessarily. In essence the impugned order is based upon misconstruction of an interlocutory order. Therefore, the learned Sessions Judge be directed to decide the revision on merits. 6. Learned Government Advocate has opposed the prayer supporting the impugned order. 7. It is well settled in law that a revision shall lie against an order of framing of charge(s). The only exception to this settled law is that a revision shall not lie on the ground that a major charge is framed, whereas the minor charge is ought to be framed because in that event, the order of framing of charge will be in the nature of interlocutory order. (See – Khagesh Kumar Goel vs. State of M.P. and others, 1997(2) M.P.L.J. 690 ). On the same analogy, in my considered view, a revision shall lie against an order of framing of charge(s) by which an altogether new charge(s) is framed because a valuable right accrues to an accused to assail the order on the grounds such as non-existence of prima facie evidence on record, mandatory requirement of prior prosecution sanction and incompetency of the trial court to conduct the trial under the charge(s) etc. Therefore, an order of framing an entirely new charge(s) is not an interlocutory order. In the present case, an altogether new charge under section 420, Indian Penal Code is framed against the applicant therefore, the order that 21-2-2015 passed by the learned trial Magistrate is not an interlocutory order. 8. Therefore, an order of framing an entirely new charge(s) is not an interlocutory order. In the present case, an altogether new charge under section 420, Indian Penal Code is framed against the applicant therefore, the order that 21-2-2015 passed by the learned trial Magistrate is not an interlocutory order. 8. The Supreme Court in the case of Amar Nath and others vs. State of Haryana and others, AIR 1977 SC 2185 has exposited the term “interlocutory order” appearing in section 397(2), Criminal Procedure Code as under :— “The terms “interlocutory order” in section 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of 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 of insertion of this particular provision in section 397. Thus, for instance, 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 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 order so as to be outside the purview of the revisional jurisdiction of the High Court.” 9. In the light of the aforestated statement of law, I have examined the order dated 21-2-2015, and I find the said order is not an interlocutory order as it substantially affects the right of the applicant as discussed in para-7 of this order. Therefore, the learned Sessions Judge has passed the impugned order upon his misconception about an interlocutory order. 10. For the aforestated reasons, I hold that the revision shall lie against the order dated 21-2-2015 passed by the learned trial Magistrate. Therefore, the impugned order dated 4-3-2015 is set aside. The learned Sessions Judge is directed to decide the revision filed by the applicant on merits in accordance with law and procedure. 11. 10. For the aforestated reasons, I hold that the revision shall lie against the order dated 21-2-2015 passed by the learned trial Magistrate. Therefore, the impugned order dated 4-3-2015 is set aside. The learned Sessions Judge is directed to decide the revision filed by the applicant on merits in accordance with law and procedure. 11. Accordingly, this petition is finally disposed of. Certified copy as per rules.