Amar Nath and Others. v. State of Haryana & Others
H. S. Marwah, for Respondent No. I
Anand Prakash and S. C. Patel, for Respondent No. 2
The Judgment of the Court. was delivered by
FAzAL Au, J.-This appeal by special leave involves ·an impor-
tant question as to the interpretation, scope, ambit and connotation G
of the word "int<Tlocutory order" as appearing in sub s. (2) Of s. 397
of the Code of Criminal Procedure 1973. For the purpose ol
brevity, we shall refer to the Code of Criminal Procedure, 1898 as
"the 1898 Code", to the Code of Criminal Procedure, 1898 as amen-
ded in 1955 as :'the 1955 Amendment" and to the Code of Criminal
Procedure, 1973 as "the 1973 Code". The appeal arises in the fol-
lowing circumstances. H
An incident took place in village Amin on April 23, 1976 in the
course of which three persons died and F.l.R. No. 139 dated April
224 SUPREME COURT REPORTS (1978] 1 S.C.R.
23, 1976 was filed at police station Butana, District Karna! at about
5-30 P.M. The F.1.R. mentioned a number of accused persons in
cluding the appellants as having participated m the occurrence which
resulted in the death of the deceased. The police, after holding in
vestigations, submitted a charge-sheet against the other accused per
sons except the appellants against whom the police opined that no
case at all was made out as no weapon was recovered nor was there
any clear evidence about the participation of the appellants. The
police thus submitted its final report under s. 173 of the •19.73 Code
insofar as the appellants were concerned. The report was placed
before Mr. B. K. Gupta the Judicial Magistrate, Ist Class, Karna!,
who after perusing the same set the appellants at liberty after having
accepted the report. It appears that the complainant filed a revision
petition before the Additional Sessions Judge, Karna! against the
order of the Judicial Magistrate, Ist Class, Kamal releasing the ap
pellants, but the same was dismissed on July 3, 1976. The infor
mant filed a regular complaint before the Judicial Magistrate, Jst
Class, on July 1, 1976 against all the 11 accused including the appel
lants. The. learned Magistrate, after having examined the complainant
and going through the record, dismissed the. complaint as he was
satisfied that no case was made out against the appellants. Thereafter
the complainant took up the matter in revision before the Sessions
Judge, Karna!, who this time accepted the revision petition and
remanded the case to the Judicial Magistrate for .further enquiry. On
No;1ember 15, 1976, the learned Judicial Magistrate, on receiving
the order of the Sessions Judge, issued summons to the appellants
straightaway. The appellants then moved the High Court under s.
482 and s. 397 of the 1973 Code for quashing the order of the Judi
cial Magistrate mainly on the ground that the Magistrate had issued
the summons. in a mechanical manner without applying his judicial
mind to the facts of the case. The High Court dismissed the peti
tion in limine and refused to entertain it on the ground that as the
order of the Judicial Magistrate dated November 15, 1976 summoning
the appellants was an interlocutory order, a revision to the High.
Court was barred by virtue of sub s. (2) of s. 397 of the 1973 Code.
The learned Judge further held that as the revision. was barred, the
Court could not take up the case under s. 482 in order to quash the
very order of the Judici~l Magistrate under s. 397(1) of the 1973
Code. Otherwise the very object of s. 397(2) would be defeated.
While we fully agree with the view taken by the learned Judge
that where a revision to the High Court against the order of the Subor
dinate Judge is expressly barred under sub-s: (2) of s. 397 of the
197 3 Code the inherent powers contained in s. 482 would not ile
available to defeat the bar contained in s. 397(2). Section 482
of the 1973 Code contains the inherent powers of the Court and
does not coni'er any new powers but preserves the powers which the
High Court already possessed. A harmonious construction of ss.
397 and 482 would lead to the irresistible conclusion that where a
particular order is expressly barred under s. 397(2) and cannot be
the subject of revision by the High Court, then to such a case the pro
visions of s. 482 would not apply. It is well settled that the inherent
AMAR NATH v. HARYANA (Fazal Ali,!.) 225
powers of the Court can ordinarily be exercised when there is no
express provision on the subject-nutter. Where there is an expre ss
provision , barring a particular remedy, the Court cannot resort to
the exercise of inherent powers.
So far as the second plank of the view of the learned Judge that.
the. order of the Judicial Magistrate in the instan t case was an inter
locutor y order i s cpncerncd , it is a matter V'hich merits serious consi
deration . A histor y of the criminal legislation in India would mani
festly reveal that so far as the Code of Criminal Procedure is concerned
both in the 1898 Code and 1955 Amendment the widest possible
powers O'~ revision had been given to the High Court under ss. 4 35
and 439 of those Codes. The H igh Court could examine the pro
priety of any order-wheth er final or interlocutory-pa ssed by any
Subordinate Court in a criminal matter. No limitation and restric
tion on the powers of the High Court were placed. But this
Court as also the various High Courts in India, by a long course of
decisions, confined the exercise of revisional powers only to cases
where the impugned order suffered from any error of law or any
legal infirmity causing injustice 0r prejudice to the accused or was
manifestly foolish or perverse. These. restriction s were placed by
the case law, merely as a rule of prudence rather than a rule of law
and in suitable cases the High Court s had the undoubted power to
interfere with the impugned order eYen on facts. Sections 435 and
439 being identical in the 1898 Code and 1955 Amendment insofar as
they are relevant .run , thus :
. "435 (1) The High Court or any Sessions Judge or Dis
.trict Magistrate , or any Sub-divisional Magistra te empower
ed by the State Government in this behalf, may call 'for and
examine the record of any proceeding before a ny inferior
Criminal Court situate within the local limits of its or his
jurisdiction for the purpose of satisfying itself or himself as
to the correctness , legality or propriety df any finding, sen"
tence or order recorded or passed, a nd as to the regularity
of any proceedings of such inferior Court .. .... ...... .. "
"439. (1) In the case of any proceeding the record of
which has been called for b y itself or which has been r epor
ted for orders, or which otherwise comes to its knowledge,
the High Court may, in its discretion, exercise any of the
powers conferred on a Court of appeal by section 423,
. 426, 427 and 428 or on a Court by section 338, and may
enhance the. sentence; and, when the Judges composing the
Court of revision are equally divided in opinion, the case
shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the
prejudice of the accused unless he has had an opportunity
of being heard either personally or by pleader in his own
defence."
IB
!F
226 SUPREME COURT REPORTS (1978'] 1 S.C.R.
In fact the only rider that was put under s. 439 was that where the
Court enhanced the sentence th~ accused had to be given an opportu
nity of being heard .
The concept of an interlocutory order qua the revisional jurisdic
tion of the High Court, therefore, was completely foreign to the
earlier Code. Subsequently it appears that there had b~en large
number of arrears and the High Courts were flooded with revisions
of all kinds against interim or interlocutory orders which led to enor
mous delay in the disposal of cases and exploitation of the poor
accused by the affluent prosecutors. Some times interlocutory orders
caused harrassment to the accused by unnecessarily protracting the
tria'fs. It was in the background of these facts t)Jat the Law Com
mission dwelt on this aspect of the matter and in the 14th and 41st
Report s submitted by the Commission which formed the basis of
.the 1973 Code the said Commission suggested revolutionary changes
·to be made in the powers of the High Courts. The recommendations
of the Commission were examined carefully by the Government ,
keeping in view; the following basic <;:onsiderations :
" (i) an accused person should get a fair trial in accor- .
dance with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investi-
gation and trial which is harmful not only to the
individuals involved but also to society; and
(iii) the procedure should not be complicated and should,
to the utmost extent possible~- ensure fair deal to
the poorer sections of the community."
This is dearly mentioned in the Statement of Objects and Rea-
sons accompanying the 1973 Code. Clause (d) of Paragraph 5
of the Statement of Objects and Reason s runs thus
".the powers of revision against interlocutory Ol'ders are
being tak·~ n away, as it has been found td be one of the
main contributing factors in the delay of disposal of criminal
cases : "
Similarly, replying to the debate in the Lok Sabha on sub-c'lause
(2) of Clause 397, Shri Ram Niwas Mirdha, the Minister concerned,
observed as follows :
·'It was stated before the Select Committee that a large
numb er of appeal s against interlocutory orders are filed with
the result that th~ appeals got delayed considerably. Some
of the more notorious cases concern big business person s.
So, this new· provision was also wek.omed by most of t~e
witnesses as well as the Select Committee .. . ........ This
was a well-thought out measure so we do not want to delete
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AMAR NATH v. HARYANA (Fazal Ali, :T.) 22 7
Thus it would appear that s. 397(2) was incorporated in the 1973 A
Code with the avowed purpose of cutting out delays and ensuring
that the accused persons got a fair trial without much delay and the
procedure was not made complicated. Thus the paramount object
in inserting this new provision of sub-s. (2) of s. 397 was to safeguard
the interest of the accused.
Let us now proceed to interpret the prowsions of s. 397 against the
bistorical background of these f;lcts. Sub-section (2) of s. 397 of
the 1973 Code may be extracted thus :
"The powers of revision conferred by ~ub-section (1)
shall not be exercised in relation to a!ly interlocutory order
passed in any appeal, inquiry, trial or other proceeding."
The main question which falls fclr determination in this appeal i's
:as to the what is the connotation of the term "interlocutory order" as
.appearing in sub.-s. (2) of s. 397 which bars any revision of such 'an
order by the High Court. The term "interlocutory order" is a term
.of well-known Iegal significance and does not present any serious diffi
.culty. It has been used in various statutes including the Code of
Ci,<;J Procedure, Letters Patent of the High Courts and other like D
statutes. In Webster's New World Dictionary "interlocutory" has
been defined ·as an order other than final decision. Decided cases
have laid down that in~erlocutory 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 s. 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 E
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 oe the accused, or decides certain rights
of the parties cannot be said to be an interlocutory order so as to bat
a revision 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 s. 397 of the 1973 Code. Thus, for instance, F
orders summoning witnesses, adjourning cases, passing orders for
bail, calling for reports and such other steps in aid of the pending pro
ceeding, may no doubt amount to interlocntory orders against which
no revision would lie under s .. 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 []mrview of· the revisional G
jurisdiction of the High Court.
In Central Bank of India v. Gokal Chand(') this Court while
describing the incidents of an interlocutory order, observed as follows
"In the context of s. 38 ( 1), the words "every order of
the Controller made under this Act", though very wide, do
not include interlocutory orders, which are merely procedural
(I) A.LR. 1967 S.C. 799, 800.
and do. not affect the rights or liabilities of the parties. In a
pending proceeding the Controller, may pass many interlo
cutory orders under ss. 36 and 37, such as orders regarding
the summoning of witnesses, discovery, production and ins
pection df documents, issue of a commission for examination
of witnesses, inspection of premises, fixing a date of hearing
and the admissibility of a document or the relevancy of a
question. All these interlocutory 'orders are steps taken
towards the final adjudication and for assisting the parties in
the prosecution of their case in the pending proceeding; they
regulate the procedure only and d.o not affect any right or
liability of the parties."
The aforesaid decision clearly illustrates the nature and incidents
of ·an interlocutory order and the incidents given by this Court consti
tute sufficient guidelines to interpret the connotation of the word
"interlocutory order" as appearing in sub-s. (2) of s. 397 of the 1973
Code. ·
Similarly in a later case in Mohan Lal Magan Lal Thacker v. State
. of Gujarat(') this Court pointed out that the finality of an order could
not be judged by co-relating that order with the controversy in the
complaint. The fact that the controversy still remained alive was
irrelevant. In that case this Court held that even thoul!h it was
an interlocutory order, the order was a final order. -
Similary in Baldevdas v. Filmistan Distributors (India) Pvt. Ltd.(')
while interpreting the import of the words "case decided'' appearing in
s. 115 of the Cocte·of Civil Procedure, this Court observed as follows
"A case may be said to be decided, if the Court adjudi
cates for the purposes of the suit some right or obligation of
the parties in controversy;"
Apart from this it would appear that under the various provisions
of the Letters Patent of the High Courts in India, an appeal lies to a
Division Bench from an order passed by a Single Judg<> and some
High Courts have held that even though the order may appear to be
an inter"Jocutory one where it does decide one of the aspect of the
Tights of the parties it is, appealable. For instaRce, an order of a
Single Judge granting a temporary injunction was held by a Full Bench
of Allahabad High Court in Standard Glass Beads Factory ·and Anr.
v. Shri Dhar & Ors.(") as not being an interlocutory order having deci
ded some rights of the parties and was, therefore, appealable. To
the sam" effect arc the decisions of the Calcutta High Court in Union
of India v. Khetra Mohan Banerjee('), of the Lahore High Court in
Gokal Chand v. Sanwal Das and others;(') of the Delhi High Court
(I) [19681 2 S.C.R. 685.
(2) A.l.R. [1970] S.C. 406.
(l) A.LR. [19601All.692.
(~)A.LR. [19601Cd.190.
{.;) A.LR. [1920] Lah. 326.
·-
AMAR NATH v. HARYANA (Fazal Ali, !.) 229
in Begum A/tab Zamani v. Shri Lal Chand Khanna(') and of the A
Jammu & Kashmir High Court in Har Parshad Wali and Anr. v. Naran-
jan Nath Matoo and others( 2 ). ·
Applying the aforesaid rests, let us now see whether the order
impugned in the instant case can be said to be an interlocutory order
as held by the High Court. In the first place, so far as the appellants are
concerned, the police had submitted its final report against them and
they were released by the Judicial Magistrate. A revision against
that order to the Additional Sessions Judge preferred by the comp
lainant had failed. Thus the appellants, by virtue of the order of
the Judicial Magistrate as affirmed by the Additional Sessions Judge
acquired a valuable right of not being put on trial unless a proper
order was made against them. · Then came the complaint by res
pondent No. 2 before the Judicial Magistrate which w~s also dismissed
on merits. The Sessions Judge in revision, however, set aside the
order dismissing the complaint and ordered further inquiry. The
Magistrate on receiving the order of the Sessions Judge summoned
the appellants straightaway which meant that the appellants were to be
put on trial. So long as the Judicial Magistrate had not passed this
order, no proceedings were started against the appellants, nor were
any such proceedings pending against them. It w.as only with the
passing of the impugned order that the proceedings started and the
question of the appellants being put up for trial arose for the first time.
This was undoubtedly a valuable right which the appellants possessed
and which was being denied to them by the impugned order. It
cannot, therefore, be said that the appellants were not at all prejudiced,
or that any right of theirs was not involved by the impugned order.
It is diftkult to hold that the impugned order summoning the appellants
straightaway was merely an interlocutory order which could not be
revised by the High Court under sub-ss. (1) and (2) of s. 397 of
the 1973 Gode. The order ·of the Judicial Magistrate ·summoning the
appellants in \he circumstances of the present case, particularly having
regard to what had preceded, was undoubtedly a matter of moment,
and a valuable right of the appellants had been taken away by the
Magistrate's passing an order prima facie in a mechanical fashion
without applying his mind. We are, therefore, satisfied that the order
impugned was one which was a matter of moment and which did
involve a decision regarding the rights of the appellants. If the appel
lants were not summoned, then they could not have faced the trial
at all, but by compelling the appellants to face a trial without proper
application of mind cannot be held to be an interlocutory matter but
one which decided a .serious question as to the rights of the appellants
to be put on trial. •
For these reasons, the order of the Judicial Magistrate, !st Class,
Karna! dated November 15, 1976 cannot be said to be an interlocutory
order and does not fall within the mi'schief of sub·s. (2) ot s. 397 of
the 1973 Code and is not covered by the same. That being the posi-
(1) A.LR. 1969 Delhi 85.
(2) A.l.R.1959 J. & K.139.
A tion, a revision against this order was fully competent under s. 397 (1)
or under s. 482 of the same Code, because the scope of both these
sections in a matter of this kind is more or· Jess the same.
As we propose to remand this case to the High Court to decide
the revision on merits, we refrain from making any observation regard
ing the merits of the case. The appeal is, therefore, allowed, the
B order of the High Court dated February 14, 1977 refusing to entertain
the revision petition of the appellants 'is ·set aside. The High Court is
directed to admit the revision petition filed by the appellants and to
decide it on merits in accordance with the law.
P.B.R. Appeal allowed.