- (1.) S. R. Bhargava, J. This criminal revision by State has arisen from Sessions Trial No. 265 of 1973 - State v. Kailash Nath Misra and others. The revision is directed against order dated 9-li-1982 passed by the Sessions Judge seized of the trial on application 16 7 kha.
(2.) FACTS as they appear from the lower court record are that on 21st November, 1973 after inquiry under Chapter XVIII of the Old Code (Criminal Procedure Code of 1898 the letter of commitment was received. in the Sessions Court and Sessions Trial No. 265 of 1973 was registered. Then the new Code (Code of Criminal Procedure of 1973) came into force. The sessions trial was pending. After prosecution evidence prosecution tendered statement of accused recorded in committing court as evidence. The learned Sessions Judge referred to Section 484 of the New Code. He said that there is no provision in the New Code for tendering the statement of accused recorded in the committing court as evidence. He further stated that the trial was held under the New Code. Hence he dismissed the application and refused to accept the statement of the accused in evidence. Being aggrieved. State filed present revision. On behalf of the accused preliminary technical point has been raised. It is contended that the impugned order is an interlocutory order and so the revision is barred by Section 397 (2) of the New Code. It may be assumed for the sake of argu ment that this revision has to be disposed of according to provisions of the New Code. Much water has flown in the Ganges. Now interlocutory order is not interpreted as an order which does not finally decide a case. A final order has been defined as an order which adjudicates upon the rights of the parties and the order has long standing affect. If the order is of temporary nature, and has a ephimeral effect it is an interlocutory order. An order refusing to admit any important piece of order adjudicates upon the rights of the parties and is not a temporary or a ephimeral nature. Hence it does not fall in the category of interlocutory order. The preliminary point raised on behalf of the accused has to be rejected.
(3.) THEN reference should be made to Section 484 (2) (a) of the New Code which runs as under; "notwithstanding such repeal, - (a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investi gation pending, then, such appeal, application trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the Old Code), as if this Code had not come into force : Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;" I have perused the Old Code. Chapter XVIII of the Old Code has; the heading "of inquiry into cases triable by the Court of Sessions or High Court. " Provisions of this Chapter laid down the procedure for holding inquiry and committing the cases exclusively triable by Court of Sessions or High Court. That stage has already passed because before the commencement of the New Code on 1st April, 1974 the case had been committed to sessions as noted above. Hence, in this case proviso to Section 484 (2) (a) is not attracted. When the New Code came into force the sessions trial was pending and according to clause (a) of 484 (2) of the New Code had to be tried in accordance with the provisions of the Old Code, as if New Code had not come into force. In the Old Code there was Chapter XXUI, regulating trials before High Courts and Courts of Sessions. Section 267 of this Chapter read under: - "287. The examination of the accused (if any) recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence. " Heard parties counsel and Shri Arun Kumar Misra learned A. G. A. for State. Perused the record and alter the scrutiny of the provisions of Old and New Code I am of the opinion that the observation of the learned Magistrate that there is no provision in the New Code for accepting or tendering the statement of the accused recorded by the committing Magistrate was unwar ranted. I further hold that the statement of the accused was liable to be admitted in evidence under Section 287 of the Old Code.;