9911796707
TMI Blog2019 (12) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... the case to prove his deference in the case, it is to be construed as an intermediate order or a quasi final order. From the survey of law made as to what orders can be construed as intermediate orders or quasi final orders on the principle that it is an order which is of matter of moment or that it touches the substantial rights and liabilities of the parties in relation to the trial, the legal position is now clear from the precedential guidance given in the three-Judge Bench judgment of the Apex Court in Girish Kumar Suneja [ 2017 (7) TMI 1088 - SUPREME COURT ] that those orders which have the effect of terminating the proceedings of the main case once for all though passed at interlocutory stage are alone to be construed as an intermediate or quasi final order. That is the only feasible test to decide whether a particular order is an interlocutory order or an intermediate or quasi final order for the purpose of maintaining revision under Section 397(1) Cr.P.C. Therefore, in the considered opinion of this Court, the said concept of intermediate order cannot be stretched to that extent so as to take within its fold all other interlocutory orders which are passed during the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id cases, the revision petitioners have filed petitions in all the said cases respectively under Section 45 of the Evidence Act requesting the trial Courts to send the documents in question, whether the cheque or the promissory note, as the case may be, to the expert for examination either to compare the disputed signatures on the document in question with the admitted signatures or to determine the age of the ink to establish their defence taken in the respective cases. 4. All the said petitions filed under Section 45 of the Evidence Act were dismissed by the trial Courts on various grounds on factual aspects. 5. Aggrieved by the impugned orders in dismissing the said petitions filed under Section 45 of the Evidence Act, filed during the pendency of the trial of the cases, the petitioners have preferred these Criminal Revision Cases under Section 397(1) Cr.P.C. 6. When these Criminal Revision Cases came up for hearing before this Court, this Court entertained a doubt regarding the maintainability of these revision cases under Section 397(1) Cr.RC. in view of the express bar engrafted under Section 397(2) Cr.RC. to entertain a revision under Section 397(1) Cr.RC. against an interlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and Madhu Limaye AIR 1978 SC 47 : (1978) SCR (1) 749 : (1977) 4 SCC 551 (supra). They would finally contend that orders which are of matters of moment dealing with the rights and liabilities of the parties in relation to the trial of the case cannot be termed as interlocutory orders and they are to be construed as intermediate orders against which revision is maintainable. Therefore, they emphatically contend that these revision cases are maintainable under Section 397(1) Cr.P.C. 8. Per contra, learned Counsel for the respondents and the learned Additional Public Prosecutor would contend that revision under Section 397(1) Cr.P.C. is maintainable only against final orders which terminate the proceedings of the main case by the said order once for all and revision against all other orders which are passed during the pendency of the trial, which are interlocutory orders, is not maintainable in view of the express bar contained in Section 397(2) Cr.P.C. They would then contend that although on account of the ratio laid down in the judgments of the Apex Court in Amar Nath and Madhu Limaye (supra), a third order called as 'intermediate order' is carved out saying that order whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute is common place, facts are simple, law is well settled, yet a combat. This Court is once again called upon to answer the vexed question as to what is an interlocutory order as contemplated under Section 397(2) Cr.P.C. and whether an order passed under Section 45 of the Evidence Act is an interlocutory order attracting the bar under Section 397(2) Cr.P.C. and whether a revision against the said order under Section 397(1) Cr.P.C. is maintainable or not. 10. Despite the fact that there is considerable precedential guidance on the question whether a particular order passed during the pendency of trial of a criminal case is a final order or an interlocutory order or an intermediate order, the vexed question of law whether revision against these orders under Section 397(1) Cr.P.C. is maintainable or not has been subject matter of adjudication in many cases on many occasions and the present one is another such occasion. 11. Before adverting to answer the same, it is expedient to go through Sections 397(1) and 397(2) Cr.P.C. and to consider the intention of the legislation in introducing this new provision under Section 397(2) Cr.PC. in the year 1973 and also to consider the object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by invoking this power of revision and trial of the cases are either being protracted or stalled in the trial Courts on account of questioning the said interlocutory orders in evision. So, considering the Law Commission Report issued in this regard, to curb this practice of stalling or protracting the proceedings of the case in the trial Court by way of preferring revisions against interlocutory orders, this new provision under Section 397(2) Cr.P.C. was introduced whereunder an express bar is imposed on the revisional Courts to entertain any revision under sub-section (1) of Section 397, Cr.P.C. against interlocutory orders. 14. Therefore, considering this, historical background in introducing sub-section (2) of Section 397, Cr.P.C. imposing an express bar to entertain revisions under Section 397(1) Cr.P.C. against an interlocutory order, any interpretation to be given to a particular order passed during the pendency of the trial to decide or ascertain whether it is a final order or an interlocutory order or an intermediate order for the purpose of maintaining a revision under Section 397(1) Cr.P.C. must be in consonance with the object of the legislation In introducing and incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided against the said intermediate or quasi final order then also the parties can invoke the revisional jurisdiction under Section 397(1) Cr.P.C. However, an order which is pure and simple interlocutory order which do not decide anything finally is to be considered as interlocutory order and no revision against that interlocutory order is maintainable under Section 397(1) Cr.P.C. in view of the express bar imposed under Section 397(2) Cr.P.C. 16. Now, the seminal question that arises for determination in this batch of criminal revision cases is what are the orders that can be construed as intermediate or quasi final orders and whether the order passed under Section 45 of the Evidence Act is an interlocutory order or intermediate order and whether revision against the said order is maintainable or not. 17. Undoubtedly, the impugned orders under Section 45 of the Evidence Act were passed by the trial Courts during the pendency of the trial of the main cases. Irrespective of the fact whether the said petition filed under Section 45 of the Evidence Act is allowed or dismissed, the proceedings of the main criminal case still subsists and continues. So, it does not decide anything fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the accused and issued summons to the accused. The said order of taking cognizance of the case and issuing summons to the accused was challenged by the accused by way of filing revision under Section 397(1) Cr.P.C. Therefore, while considering the maintainability of revision against the said order, the Apex Court held that an order which relates to taking cognizance of the case and thereby issuing summons to the accused for his appearance cannot be construed as a pure interlocutory order as ultimately if the challenge to the said order is accepted and if the Court finds that taking cognizance of the case against the accused itself is bad under law and if the said order is set aside, it would have the effect of terminating the main proceedings of the case itself once for all. Therefore, it is held that such orders though passed during pendency of the case, since the order would have the effect of terminating the main proceedings of the case itself once for all, it is to be construed as an intermediate order or a quasi final order against which revision is maintainable under Section 397(1) Cr.P.C. In the said process of interpretation, the Apex Court in Amar Nath held that int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puts an end to the case, then those orders though passed during the pendency of the trial of the case, are to be construed as quasi final orders or intermediate orders against which revision is maintainable. 22. In the context while understanding the purport of the said two judgments, it is to be noticed that as the right of the accused to question the order taking cognizance of the case against him without any valid legal basis, is a substantial right conferred on him, as it touches the liability of the accused to face the trial, and if the challenge to the order is ultimately accepted and the order is set aside, as it would have the effect of terminating the main proceedings of the case itself against him, the said order is held to be intermediate order or quasi final order by the Apex Court in Amar Nath. Similarly, in Madhu Limaye also if the accused who is aggrieved by the order of framing charge against him challenges the said order of framing charge on the ground that without there being any valid legal basis for framing charge that a charge was framed against him and that the said charge is groundless and if ultimately the said challenge is accepted and the order is set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order. 17. The concept of an intermediate order first found mention in Amar Nath v. State of Haryana (supra) 7 in which case the interpretation and impact of Section 397(2) of the Cr.P.C. came up for consideration. This decision is important for two reasons. Firstly it gives the historical reason for the enactment of Section 397(2) of the Cr.P.C. and secondly considering that historical background, it gives a justification for a restrictive meaning to Section 482 of the Cr.P.C. 18. As far as the historical background is concerned, it was pointed out that the Criminal Procedure Code of 1898 and the 1955 Amendment gave wide powers to the High Court to interfere with orders passed in criminal cases by the subordinate courts. These wide powers were restricted by the High Court and this Court, as matter of prudence and not as a matter of law, to an order that suffered from any error of law or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such, order was passed during the interim stage (vide Amar Nath v. State of Haryana (((1977) 4 SCC. 137) : AIR 1977 SC 2185), Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551) : (AIR 1978 SC 47), V.C. Shukla v. State (1980 Supp SCC 92 : 1980 SCC (Cri) 695) : (AIR 1280 SC 962) and Rajendra Kumar Sitaram Pande v. Uttam ( (1999) 3 SCC 134 : 1999 SCG (Cri) 393) : (AIR 1999 SC 1028). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed, on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld/by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable. (Emphasis supplied). 23. We may note that in different cases, different expressions are used for the same category of orders, sometimes it is called an intermediate order, sometimes a quasi-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether a particular order is an interlocutory order or an intermediate or quasi final order for the purpose of maintaining revision under Section 397(1) Cr.P.C. Therefore, in the considered opinion of this Court, the said concept of intermediate order cannot be stretched to that extent so as to take within its fold all other interlocutory orders which are passed during the trial of the case relating to summoning of witnesses and sending the document to experts for examination etc. on the ground that it touches the rights and liabilities of the party in relation to trial of the case. They are only the orders passed as step in aid of the trial of the pending cases. If the contention of the petitioners is accepted and every order passed during the trial of the case is construed as an intermediate order on the ground that it touches the right or liability of the party in relation to trial of the case, it amounts to defeating the object of Section 397(2) Cr.P.C. and diluting the legislative intent. 27. Though the learned counsel for the petitioners strenuously contended and made an effort to convince the Court that an order passed in a petition filed under Section 45 of the Evidence Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree-Judge Bench judgment of the Apex Court in Girish Kumar Suneja, the judgment of the Madurai Bench of the Madras High Court in the case of Kalyanaraman v. K.S. Janakiranian order dated 24.08.2009 passed in Cri.O.R(MD) No. 4270 of 2009, that an order passed under Section 45 of the Evidence Act is the order which is of matter of moment which affects the rights of the accused on a particular aspect of the trial cannot be said to be an interlocutory order and it is to be construed as an intermediate order, with due respect, cannot be held to be laying down a correct law on the point. Similarly, for the aforementioned reasons, the judgment of the common High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, in T. Rajalingam alias Sambam v. State of Telangana, 2001 (3) ALT (Cri) 203 and also the judgment of the Karnataka High Court in the case of N. Muniswamy Reddy v. M. Narayanaswamy, 2014 (3) AIR Kar 700 : 2014 (3) KCCR 2222, wherein it is also held that an order passed under Section 45 of the Evidence Act is not interlocutory in nature and the revision against the same is maintainable, cannot also said to be laying down the correct proposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
