S.K.Ray, C.J. -
(1.) THIS is an application under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding in case No. 2(C) C.C. 17 of 1972 pending in the Court of Shri K. B. Sahu, Judicial Magistrate, First Class, Berhampur after quashing the charges under Sections 177, 182 and 419 of the Indian Penal Code framed therein. This criminal case was initiated on the basis of a complaint filed by Dr. Sukumar Das in his official capacity as the Principal of M.K.C.G. Medical College. Berhampur. It is alleged in the complaint petition that the Petitioner secured his admission into the aforesaid medical college by producing a false declaration and a false nativity certificate to the effect that he is a permanent resident of Orissa while, in fact, he is not.
(2.) AFTER taking cognizance against the Petitioner for offences under Sections 177, 182 and 419, Indian Penal Code, the Sub -divisional Judicial Magistrate. Berhampur transferred the case for disposal to Shri K.B. Sahu. Judicial Magistrate. First Class. Berhampur. The prosecution examined P.W. 1, Dr. Sukumar Das, and exhibited -I documents. Ext. 1 is the nativity certificate purportedly granted by the Tahsildar, Parlakimedi; Ext. 2 is the application form of the Petitioner, Ext. 3 is the declaration form of the Petitioner and Ext. 4 is the order of the Director of Health Services directing prosecution of the Petitioner. Thereafter the question of framing of charges was mooted in the Court of the Magistrate, the Petitioner contending that no prima facie case for framing charges had been made out on the evidence so far produced and the A.P.P. for the prosecution contending otherwise. Ultimately charges were framed by the order of the Magistrate dated 30 -1 -1976. Being aggrieved by that order, the Petitioner moves the Sessions Judge, Berhampur for quashing the charges and directing that the Petitioner be discharged, in Criminal Revision No 16 of 1976(G). This revision was heard by the Additional Sessions Judge. Berhampur who dismissed it on the ground that the order of the Magistrate framing charges is an interlocutory order and that Section 397(2) is a bar to exercise of revisional power under Section 401, Code of Criminal Procedure. Being aggrieved by that order, the present revision application has been filed for the aforesaid reliefs.
(3.) A preliminary objection was raised by the learned Additional Standing Counsel that no second revision lay as the Petitioner had already moved the Sessions Judge invoking his power of revision against the very order of the Magistrate which is impugned in this revision. Secondly, it was contended that the order in relation to which the power of revision is sought to be exercised being an interlocutory order, this revision is not maintainable. These contentions are essentially based on Sub -sections (2) and (3) of Section 397, Code of Criminal Procedure.
It must be noticed that the revisional application to this Court has been filed under Section 482 of the Code of Criminal Procedure which provides that nothing in this Code (which would include Sub -sections (2) and (3) of Section 3(7) shall be deemed to limit or affect the inherent powers of the High Court. Thus, if a situation arises calling for exercise of this inherent jurisdiction of this Court, nothing in Section 397 bars such exercise. The Supreme Court in Madhu Limaye's case (Madhu Limaye v. State of Maharashtra : A. I. R 1978 S. C. 47), has dealt with the ambit and scope of Section 182 Code of Criminal Procedure and has laid down the following principles:
(a) The bar provided in Sub -section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court have no power of revision in relation to any interlocutory order.
(b) In such a case where the revisional power cannot be exercised, the inherent power of the High Court will come into play for the redress of the grievance of the aggrieved party. In cases where the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice, exercise of the inherent power of the High Court becomes imperative.
(c) If the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court, the High Court will refuse to exercise its inherent power.
(d) Cases of interference in exercise of inherent power of the Court should be few and far between and that such power should be exercised sparingly. It can be exercised in cases where it is desirable that a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction should be quashed.
(e) Inherent power should not be exercised as against the express bar of law en grafted in any other provisions of the Code.
Their Lordships of the Supreme Court have further proceeded to indicate the meaning of 'interlocutory order' referred to in Sub -section (2) of Section 397, Code of Criminal Procedure. Their Lordships said:
...On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse to the words 'final order'. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswarni's case ( : A.I.R. 1949 FC 1) (supra), but, yet it may not be an interlocutory order -pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, woe think that the bar in Sub -section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two.
In the case of Mohan Lal Magan Lal Thacker v. State of Gujarat : A.I.R 1968 S.C. 733, some tests for determining a final order as distinct from interlocutory order were culled out from some English decisions in the majority decision of Shelat, J. One of the tests is "If the order in question is reversed would the action have to go on -. Applying that test to the facts of the instant case, it would be noticed that if the plea of the Petitioner succeeds and the order of the Magistrate framing charges is reversed or quashed, the criminal proceeding initiated against him cannot go on. The finality of an order is not to be judged by correlating that order with the controversy in the complaint, viz., whether the Petitioner committed the offences charged against him therein. The fact that the controversy still remained alive is irrelevant. Applying the above principle to the present case, the order of the Magistrate is a final order, as opposed to an interlocutory order.
In view of my conclusion that the order of the Magistrate is a final order and that the jurisdiction that is' invoked is under Section 482, Criminal Procedure Code, the preliminary objections of the learned Additional Standing Counsel have no substance.;