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2022 DIGILAW 192 (JHR)

Mobin Mian, s/o Nasir Mian v. State of Jharkhand

2022-02-17

SHREE CHANDRASHEKHAR

body2022
ORDER : The petitioner is aggrieved of the order dated 29th September 2016 by which cognizance of the offence under sections 323, 325, 504/34 of the Indian Penal Code has been taken and the matter was fixed for appearance of Hafiz Kayum, Md. Aajam Ansari, Habibullah Ansari and Chhotu Ansari. 2. Grievance of the petitioner is that though sufficient materials were produced before the Magistrate on the basis of which cognizance of the offence under section 307 of the Indian Penal Code should have been taken, and processes should have been issued as also against the other accused persons against whom charge-sheet was not filed. 3. This criminal revision petition came on Board for hearing on 17th January 2017. 4. On that day further proceeding in connection to Sadar (Satbarwa) PS Case No. 95 of 2016 was stayed by a Coordinate Bench of this Court. 5. This criminal revision petition was listed on 16th February 2022 and at the request of the learned counsel for the petitioner hearing of this criminal revision petition was postponed for today. A request for pass over was made in the morning by Mr. Ankur Anand, the learned vice-counsel, on the ground that Mr. Mahesh Tewari, the learned counsel for the petitioner, was engaged in another Court. After the recess a similar request has been made by Mr. Ankur Anand, the learned vice-counsel appearing on behalf of the petitioner. However, this Court declined the request made by Mr. Ankur Anand, the learned vice-counsel and proceeded to hear the matter. 6. Mr. Ankur Anand, the learned vice-counsel has taken the Court through relevant portions of the judgments in “Jayant v. The State of Madhya Pradesh” (Criminal Appeal No. 824 of 2020), “State of Gujarat v. Girish Radhakrishnan Varde” (2014) 3 SCC 659 and “State of Maharashtra v. Sharadchandra Vinayak Dongre” (1995) 1 SCC 42 to submit that the Magistrate before whom the materials collected during the investigation are produced for the purpose of taking cognizance is not mere post office and the learned Magistrate is required to apply his judicial mind as to whether or not take cognizance of the offence. 7. The order dated 12th March 2021 records that a question of maintainability of the revision petition has arisen. 8. Section 397 of the Code of Criminal Procedure reads as under: “397. 7. The order dated 12th March 2021 records that a question of maintainability of the revision petition has arisen. 8. Section 397 of the Code of Criminal Procedure reads as under: “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 Sessions Judge for the purposes of this sub-section and of section 398. (2) 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. (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.” 9. The bar under sub-section 2 to Section 397 of the Code of Criminal Procedure provides that the power of revision shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The object behind introduction of sub-section 2 to section 397 of the Code of Criminal Procedure was to curb delays in the criminal trials. The term interlocutory order is not defined in the Code and, therefore, the Courts turned to the Dictionaries, Halsbury's Laws of England, Corpus Juris Secundum etc. 10. From the decisions on the subject it can be observed that the judicial decision was never divided as to what is a final order. 11. In “S. Kuppuswami Rao v. King” AIR 1949 FC 1, it was held that the test of finality is whether the order finally disposes of the rights of the parties. 12. 10. From the decisions on the subject it can be observed that the judicial decision was never divided as to what is a final order. 11. In “S. Kuppuswami Rao v. King” AIR 1949 FC 1, it was held that the test of finality is whether the order finally disposes of the rights of the parties. 12. The expression interlocutory order as appearing in sub-section 2 to section 397 of the Code of Criminal Procedure came for an exhaustive discussion in “Amar Nath v. State of Haryana” (1977) 4 SCC 137 , wherein the Hon'ble Supreme Court has held as under : “6……..The main question which falls for determination in this appeal is as to what is the connotation of the term “interlocutory order” as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. 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 Patent of the High Courts and other like statutes. In Webster's 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 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 right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revison 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 of the pending proceeding, may no doubt amount to interlocutory 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 of the pending proceeding, may no doubt amount to interlocutory 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 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.” 13. A similar view was taken by the Hon'ble Supreme Court in “Madhu Limaye v. State of Maharashtra” (1977) 4 SCC 551 which approved the judgment in “Amar Nath”, wherein the Hon'ble Supreme Court observed that the orders which are matters of moment and which affect or adjudicate the rights of the accused or are on a particular aspect of the trial do not fall under the category of interlocutory orders as envisaged under sub-section 2 of section 397 of the Code of Criminal Procedure. 14. The order dated 29th September 2016 passed in Sadar (Satbarwa) PS Case No. 95 of 2016 corresponding to GR No. 1116 of 2016 is extracted below: “Received charge-sheet no. 72116 dt. 30.08.16 alongwith CD u/s 323, 325, 504/34 IPC against accused Hafiz Kayum. Perused the same as well as the case record. From perusal a prima facie case u/s 323, 325, 504/34 IPC is made out against accused (1) Hafiz Kayum (2) Mo Azam Ansari (3) Habibullah Ansari and (4) Chhotu Ansari. Accordingly cognizance of the offence under aforesaid sections against aforesaid accused persons is taken. Put up on date fixed for appearance.” 15. The order dated 29th September 2016 is not an order passed on protest-cum-complaint petition instituted by the complainant. At the stage under section 190 of the Code of Criminal Procedure the informant has no right of hearing and as this Court finds from the materials on record, protest petition was not filed by the complainant when a charge-sheet was laid after the investigation. At the stage under section 190 of the Code of Criminal Procedure the informant has no right of hearing and as this Court finds from the materials on record, protest petition was not filed by the complainant when a charge-sheet was laid after the investigation. At this stage, as indicated by the Hon'ble Supreme Court in “Abhinandan Jha v. Dinesh Mishra” AIR 1968 SC 117 the Magistrate can make up his mind whether to take or not cognizance of the offence or to order further investigation under section 173(8) of the Code of Criminal Procedure, and that is what the learned Magistrate has done. 16. The Code of Criminal Procedure provides sufficient powers to the Court to array any person as accused against whom charge-sheet was not laid. It is trite law that charge can be altered and amended under section 216 of the Code of Criminal Procedure at any stage of the trial. At the same time it is also well settled that the Court at the stage of framing of charge can refuse to frame charge against any accused or frame charge for a lesser or graver offence whether cognizance was taken or not. In the present case, the stage has yet not arrived. Similarly, additional accused can be summoned to face the trial at any stage of the enquiry and trial. By the impugned order dated 29th September 2016 the learned Chief Judicial Magistrate has taken cognizance of the offence in GR Case No. 1116 of 2016. By the said order the proceedings in GR Case No. 1116 of 2016 do not come to an end. 17. In view of the aforesaid discussions, this Court holds that Criminal Revision No. 1585 of 2016 is not maintainable and, accordingly, it is dismissed. 18. I.A. No. 1251 of 2021 stands disposed of.