- (1.) G. P Mathur, J. A learned Single Judge has referred the following question for decision by larger bench: "whether an order of remand could be subject-matter of a revision under Section 397/401,cr. P. C. or not?"
(2.) SUB-section (2) of Section 397, Cr. P. C. lays down that the power of revision conferred by sub-section (1) shall not be exercised in relation to any inter locutory order passed in any appeal, en quiry, trial or other proceeding. The ex pression "interlocutory order" has not been defined in the Code. It will, therefore, be useful to refer to its meaning as given in some of the dictionaries: THE NEW LEXCION WEBSTER's DICTIONARY: Interlocutory.-Pronounced and arising during legal procedure, not final. WEBSTER's THIRD NEW INTERNA TIONAL DICTIONARY : Not final or definitive, made or done during the progress of an action; WHARTON's LAW LEXICON : An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties e. g. , an order appointing a receiver or granting an injunction, and a motion for such an order is termed an interlocutory motion. BLACK's LAW DICTIONARy Provisional; temporary; not final. Some thing intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy. Ordinarily and generally the ex pression 'interlocutory order' has been un derstood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:- ". . . . . . . a judgment on order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must, therefore, be considered separately in relation to the par ticular purpose for which it is required. " In para 1607 it is said: "in general a judgment or order which determines the principal matter in question is termed "final". In para 1608 at pages 744 and 745 we find the words: "an order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters of procedure, or (2) is made after judgment, and merely directs how the declara tions of right already given in the final judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals. " In 5. Kuppuswami Rao v. The King, AIR 1949 FC 1, the following principle laid down in Salomon v. Warner, (1891) 1 QB 734, was quoted with approval: "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. "
(3.) 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. However, in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, such an interpretation and the universal applica tion of the principle that what is hot a final order must be an interlocutory order was not accepted as this will render the revisional power conferred by Section 397 (1) nugatory. After taking into con sideration the scheme of the Code of Criminal Procedure and the object of con ferring a power of revision on the Court of Sessions and the High Court, it was ob served as follows: "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 be converse of the words 'final order'. There may be an order passed during the course of a proceeding which may not be final in the sence noticed in Kuppuswani's case, AIR 1949 FC 1 (supra), but, yet it may not be an inter locutory order pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate order. ";