ISHWAR DAYAL Vs. INDER SAIN

JUDGEMENT

(1.) ISHWAR Dayal had filed a criminal complaint against Inder Sain. It pertained to offences punishable under Sections 420/467/468 and 471 of the Indian Penal Code. The learned Chief Judicial Magistrate, Jind on 23.9.1986 on basis of the evidence recorded held that prima facie respondent-Inder Sain had committed the offences punishable under Sections 420/191 IPC. He preferred a revision petition in the Court of Sessions. The learned Sessions Judge, Jind on 31.1.1989 accepted the revision petition and set aside the order passed by the learned trial court. The proceedings against the respondent were quashed.

(2.) THE relevant facts are that one shop situated in Sadar Bazar, Jind is alleged to be owned by the Punjab Wakf Board. It was contended in the complaint that petitioner and Matu Ram have been in possession of the shop in question for the last more than 35 years as tenant. Matu Ram was the real uncle of the petitioner and had adopted the petitioner as a son. Matu Ram died in the year 1953. In the records of the Wakf Board Matu Ram and Ishwar Dayal were shown as tenants. In the year 1969 the respondent entered into a partnership with the petitioner. It was specifically written in the partnership deed that the petitioners shall remain tenant in the shop. It is, however, contended that intention of the respondent became dishonest. In order to get the tenancy of the shop in favour of the petitioner terminated, he fraudulently filed an application before the Punjab Wakf Board. The respondent got the tenancy changed in his name. On basis of the application and the affidavit of the respondent, the tenancy was changed in his name w.e.f. 1.7.1978. It was the case of the petitioner that respondent is the grandson of Charnu Mal and not Matu Ram. He had filed a false affidavit in order to cause harm to the petitioner.

(3.) THE first and foremost question agitated on behalf of the petitioner was that the learned Sessions Judge could not have allowed the revision petition because against an order directing the framing of the charge, no revision petition is maintainable. It was argued that it was an interlocutory order. Under sub-section (1) of Section 246 of the Code of Criminal Procedure, if when evidence has been taken, the Magistrate is of the opinion that there is ground for presuming that accused has committed an offence which the Magistrate is competent to try, the charge shall be framed. Sub-section (1) of Section 246 Cr.P.C. reads :- "246(1). If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused." With respect to the plain language referred to above, there is no controversy. But under sub-section (2) of Section 397 Cr.P.C., no revision petition is maintainable against an interlocutory order passed in any enquiry, trial or appeal. Can an order directing that prima facie case is drawn and charge be framed is called an interlocutory order ? It is felt that it should not be so described. The two judgments of the Supreme Court on the subject can well be noticed. In the case of Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, a clear distinction was drawn as to what would be an interlocutory order. In paragraph 13 the Court held :- "In S. Kuppuswami Rao v. The King, 1947 FCR 180 : AIR 1949 FC 1, Kania, C.J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186 (of FCR) : (at p. 3 of AIR). Lord Esher M.R. said in Salaman v. Warner, (1891) 1 QB 734 "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry L.J. and Lopes L.J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court [at that time there was no bar like Section 397(2)] was not a "final order" within the meaning of Section 205(1) of the Government of India Act, 1935. It is to be noticed that the 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. In our opinion, if this strict test were to be applied in interpreting the words "interlocutory order" occurring in Section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one." Reliance further was being placed on the decision in the case V.C. Shukla v. State through C.B.I., AIR 1980 SC 962. Herein once again a clear distinction was drawn as to what would be an intermediate order and an interlocutory order. An order framing the charge was described to be an interim order. In the cited decision, the decision rendered in the case of Madhu Limaye (supra) was not disapproved but it was held that it has no application to the interpretation of Section 11 of the Special Courts Act, 1979 because it excludes the provisions of the Code of Criminal Procedure. It was in that light that the Supreme Court held in the case of V.C. Shukla (supra) that an order framing the charge was an interlocutory order. The ratio of the decision, therefore, will not apply in all cases that arise under the Code of Criminal Procedure. It follows from the above that order framing the charge is not an interlocutory order but an interim order. A revision petition against such an order which affects the rights, therefore, would be maintainable. The said contention so raised consequently is rejected. To the same effect is the decision of this Court in the case of Karam Singh v. Gurcharan Singh, 1984 Criminal Law Times 33.