- (1.) On the question whether the order framing a charge or refusing to discharge the accused is revisable under S. 397, Cr. P.C. or not, I have heard the detailed arguments of the learned counsel for the parties. Section 397, Cr. P.C. reads thus :- "397. Calling for records to exercise of powers of revision .- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the some person shall be entertained by the other of them."
(2.) It is argued that in view of sub-section (2) of S. 397, Cr. P.C. an order framing charge or an order refusing to discharge an accused being an interlocutory order is not revisable in view of the clear bar contained in sub-section (2).
(3.) In Madhu Limaye v. State of Maharashtra reported in AIR 1978 SC 47, a three Judge Bench of the Supreme Court, while discussing the contours and parameters of the expression "interlocutory order" as occurring in sub-section (2) of S. 397, Cr. P.C. observed as under :- "13. 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). Lord Esher M. R. said in Saleman 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 LJ 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 S. 397(2) was not a "final order" within the meaning of S. 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 S. 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. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by S. 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chap. XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. In what cases then the High Court will examine the legality or propriety of an order or the legality or propriety of an order or the legality of any proceeding of an inferior Criminal Court? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example. The River Wear Commissioners v. William Adamson, (1876-77) 2 AC 743 and R.M.D. Chamarbaugwalla v. The Union of India, 1957 SCR 930 that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. 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. On 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 of 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 Kuppuswami's case AIR 1949 FC 1, 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, we think that the bar in sub-s. (2) of S. 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Art. 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of S. 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. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-sec. (2) of S. 397. In our opinion it must be taken to be an order of the type falling in the middle course.";