Criminal Application No.2170 of 1995

5th September, 1995

Petitioner Counsel: Mr. P.R.VAKIL, with Mr. S.V.MARWADI
Respondent Counsel: Mr. R.F. LAMBEY

Cases Cited:
AIR 1978 SC 47 [Para 2]
AIR 1978 SC 47 [Para 4]

JUDGMENT

ORDER :- By means of this petition preferred under Section 482 of the Code of Criminal Procedure the Petitioner seeks to impugned the order dated 9th August, 1995 passed by the Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, summoning him for an offence under Section 338 read with Section 34 of I.P.C.

2. When Mr. P.R.Vakil rose to address the Court, Mr. R.F. Lambey, learned A.P.P. for the Respondent raised a preliminary objection namely that the impugned order is revisable and consequently this Petition is not maintainable Mr. Lambey vehemently contended that the Apex Court in the decision reported in A.I.R. 1978 S.C. page 47, Madhu Limaye, Appellant V. State of Maharashtra, Respondent, has in unequivocal terms stated in paragraph 8 that the inherent powers of the High Court should not be resorted to if there is an express provision in the code for the redress of the grievance of the aggrieved party.

3. The question is whether the impugned order is revisable or not.

Section 397(2) of the Criminal Procedure Code shuts out a Revision being preferred against an interlocutory order. The question is as to whether the impugned order is an interlocutory order or not ?

4. The Apex Court in the decision reported in A.I.R. 1977 S.C. page 2185, Amar Nath and Others Appellants V. State of Harayana and others, Respondents, observed in paragraph 6 to the following effect :-

"..... It seems to us that the term "interlocutory order" in S.397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S.397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. (emphasis supplied).

5. In the decision reported in A.I.R. 1978 S.C. page 47 (supra) the Apex Court approved the aforesaid view taken in Amar Nath's case (supra). In paragraph 15 while dealing with Amarnath's case the Apex Court observed thus :-

"..... Yet, for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of S.397(2)."

6. If the tests laid down in the aforesaid two cases of the Apex Court are to be applied, it would become clear that the impugned order is not an interlocutory order. It is an order which affects the rights of the accused (Petitioner). Assuming that this order is quashed, the proceedings against the Petitioner would terminate.

7. In my view the impugned order being not interlocutory in nature is revisable and the proper course for the Petitioner would be to approach the concerned Sessions Judge by preferring a Criminal Revision Application against the impugned order. In these circumstances the petitioner, if he so advised, may prefer a Criminal Revision Application in the Court of Session.

8. I am informed by Mr. P.R.Vakil, learned Counsel for the Petitioner that 6-9-1995 (tomorrow) is the date which is fixed in the case before the learned Metropolitan Magistrate. Considering the overall circumstances in my view the ends of justice warrant that for a period of 3 weeks from today the proceedings in the court of the Metropolitan Magistrate shall remain stayed. the sole object in passing such an order is that the Revision of the Petitioner before the Sessions Judge is likely to be rendered infructuous if the proceedings are allowed to continue in the Court of the Metropolitan Magistrate. In case the Revision Petition of the Petitioner is not decided within a period of 3 weeks from today, the concerned Judge would pass further orders on the question of stay only after hearing the learned Counsel for the parties. In case a Revision Application is preferred by the Petitioner in the Sessions Court, the learned Judge hearing it, shall ensure that the same is disposed of within a period of 2 months from today.

9. Before parting with this order, I want to make it absolutely clear that I have not heard the Counsel for the parties on merits.

10. With the aforesaid observations this petition stands finally disposed of.

In case an application for certified copy of the order is made by Counsel for the parties the same shall be issued by 8-9-1995.

Order accordingly.