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TMI Blog2012 (5) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order ? (iv) Consequently, whether a revision against an order refusing to grant police remand is maintainable under section 397 CrPC ? 2. The learned Single Judge directed the Registry to place Special Criminal Application No.1590 of 2009 before the Hon'ble Chief Justice for appropriate orders. The Hon'ble Chief Justice has referred the matter to us and accordingly, this reference has been placed before us for our consideration. 3. Having regard to the nature of the issues involved, we deem fit and proper to first take up Question No.3 and answer accordingly, as the answer to this Question No.3 will have a direct bearing on the other questions. 4. We proceed to answer the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order. (I) Contention of petitioner : With regard to the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order, learned Senior Counsel Mr.N.D. Nanavati, appearing with learned advocate Mr.N.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered to be an interlocutory order. Learned APP tried to fortify his contention by submitting that remand is a step in aid of investigation. The Investigating Agency has a legal duty to investigate an offence thoroughly so that all material can be collected and placed in the form of chargesheet to prove the case against the accused. If such a right is curtailed at the stage of investigation, as a result of which the Investigating Agency is not able to collect the necessary material and information then the same would have a direct bearing on the trial of the accused and closure of such a right would definitely amount to a final order as the investigation comes to an end and a inquiry commences as per the provisions of the Criminal Procedure Code. 5. To answer this question, it is important and necessary to understand as to what is an interlocutory order . Under sub-section (2) of Section 397 the powers of revision conferred under sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. The expression interlocutory order is not defined in the Code of Criminal Procedure, hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order - pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. 6. The Apex Court also laid down that even though an order may not be final in one sense, but is surely final on other aspect and such an order is not interlocutory so as to attract the bar under sub-section (2). It was held that it must be taken to be an order falling in the middle course which is interpreted as not a final order or interlocutory order but an intermediate order. The same question was considered by the Apex Court in K. K. Patel Vs. State of Gujarat reported in (2000) 6 SCC 195. In K. K. Patel (supra), a revision was filed challenging the dismissal of a petition for discharge on the ground that no sanction, as contemplated by Section 197 of the Code, has been obtained. The Sessions Judge allowed the objection raised by the accused based on Section 197 and allowed the revision which was challenged before the High Court on the ground that the order passed by the Metropolitan Magistrate was an interlocutory order, and therefore, no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day. 8. Thus, what can be culled out from the judgment of the Supreme Court in N. M. T. Joy Immaculate (supra) is that an order granting remand is a pure and simple interlocutory order as it will not terminate the proceedings. In other words, if the objection of the accused of grant of remand is upheld the proceedings so far as remand is concerned would come to an end but not vice versa. We have noticed that the issue before the Supreme Court in N. M. T. Joy Immaculate (supra) was very limited as to whether a revision application at the instance of an accused is maintainable against an order granting police remand. The Apex Court after considering the land mark decision in the case of Madhu Limaye Vs. State of Maharashtra reported in AIR 1978 SC 47 and Amar Nath Vs. State of Haryana reported in 1977 (4) SCC 137, held that an order granting police remand is a purely interlocutory order and revision against it is not maintainable. We are considering exactly the converse situation. What will be the effect if the plea for remand made by police is rejected, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l finally dispose of the matter in dispute, bat, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory. 10.1The test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. 9. Thus, the principle laid down is that an order which is intended as a step in aid for bringing the prosecution to its ultimate end is an interlocutory order. An order which itself brings the entire proceedings to an end, cannot be considered to be an interlocutory order. As a matter of fact even in Amar Nath's case AIR 1977 SC 2185 : (1977 Cri LJ 1891), at the fag-end of Para-6 itself, after referring to an order for bail as interlocutory proceeding, the Supreme Court observed as follows (at p.1895 of Cri LJ) :- 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 orders so as to be outside the purview of the revisional jurisdiction of the High Court. Now, in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 therefore 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 is 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 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.' In para 15 of the said judgment, the Supreme Court has indicated that even certain orders, which would be normally stamped as interlocutory orders, took in their embrace a fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Senior Advocate, also invited our attention to the observation of the Supreme Court made in Paragraph-13 of the judgment that the remand order cannot affect the progress of the trial or its decision in any manner. Relying on this observation made by the Supreme Court in N.M.T. Joy Immaculate (supra), learned counsel submitted that an order refusing to grant remand would also have no bearing on the proceedings of the trial itself and would not have any effect on the ultimate decision of the case. According to Mr.Nanavati, learned Senior Advocate, this question which has been framed by the learned Single Judge has a direct bearing on the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order. According to Mr.Nanavati, learned SeniorAdvocate, if an order refusing to grant remand has no bearing on the proceedings of the trial itself and would not have any effect on the ultimate decision of the case, then in that case, the order has to be termed as an interlocutory order and not as an intermediate or a final order so as to make the revision application maintainable. 13. Contentions of the State : O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether an order of grant of remand is an interlocutory order or a final order so as to make the Revision Application under Section 397 read with Section 401 of the Code maintainable. On plain reading of the judgment of the Supreme Court in N.M.T. Joy Immaculate (supra), we find that the only issue before the Supreme Court was as to whether an order of remand passed against the accused can be termed as an interlocutory order or a final order. The Supreme Court after considering the true meaning of the term interlocutory order and after considering the judgment of the Supreme Court in Madhu Limaye (supra) and Amar Nath (supra) held that if the remand is granted then in that case, the proceedings are not finally culminated, and what the Supreme Court has tried to convey is that the remand is a step in aid of effective and proper investigation. If an accused is subjected to remand all that happens is that he will remain in custody of the police for more than 24 hours, during which the accused is subjected to interrogation so that the Investigating Agency can investigate the offence properly and collect cogent material to put the accused to trial by filing the chargesheet. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Investigating Agency either by interrogating the accused in judicial custody or by interrogating him in police custody. Normally, police custody is not lightly granted, but looking to the facts and circumstances of the case and seriousness of offence and on the request of the Investigating Agency to enable it to collect material evidence upon interrogation of the accused by placing him in police custody such request can be granted. By granting such request the Magistrate does not decide rights and obligations of the parties, namely, the prosecution and the accused. The Court simply assists the investigation in carrying out investigation in impartial and effective manner. After all investigation has to be carried out once the case is registered and the police makes a request for carrying out investigation. Carrying out investigation is a step in aid of submission of charge sheet or step in aid of submission of final report as is contemplated u/s. 169 Cr.P.C. It is only when the charge-sheet is submitted that the right of the accused can be said to have been determined one way or the other by the police. Likewise if a final report u/s. 169 is submitted it can be said that the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution. Consequently in such a case refusal of police remand is certainly revisable. But granting police remand is not a case where the right of the prosecution or right of the accused has in any way been partly or wholly adjudicated upon. Consequently it is not a final order against which no revision lies. 16. In Gopalbhai Chaturbhai Amin (supra), the learned Single Judge observed as under: [IV] xxx xxx xxx From the aforesaid paragraph it is clear that there is vast difference between the grant of remand and rejection of the remand. The whole decision of the Hon'ble Supreme Court reported in 2004 (5) SCC 729, was for grant of remand, which is held as an interlocutory order and not revisable. If the remand is rejected and the remand of the accused is not given to the police, it adversely affects the right of the prosecution of carrying out investigation. Right to carry out investigation and by which method, is exclusive powers of the State. Custodial interrogation is one of the well-known methods of investigation, and, therefore, when the remand is not granted, it affects vitally and adversely the investigation but if the same is granted, then as per Para 13 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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