V.C. SHUKLA v. STATE THROUGH C.B.I (2)

Citation: [1980] 2 S.C.R. 380

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, P.N. SHINGAL, D.A. DESAI, A.P. SEN

Case summary

(c) The term "interlocutory order" used in section 397(2) of the Code relates to various stages of tbe trial, namely inquiry, trial or any other proceeding....

Judgment text

'A V. C. SHUKLA •• ' v. STATE THROUGH C. B. I. December 1, 1979 [S. MURTAZA FAZAL ALI, P. N. SHINGHAL, D. A. Dl! SAI AND A. P. SEN, JJ. ] Special Courts Act, 1919-Section 11(1) and 11(2)-Scope of-Order of Judge of Special Court directing a charge to be framed against the accused- Whethcr an interlocutory order-Appeal-If Ues against that order- Interlocutory order-What is. Non-obstante clause-Interpretation of. Section 11(1) of the Special Courts Act, 1979 provides that ''notwithstand· ing anything in the Code of Criminal Procedure an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and law. " Sub-section (2) provides that "except as aforesaid no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court. " The Special Judge appointed under the Special Courts Act, 1979 directed a charge to be framed against the appellant under section 120B J. P.

C. read with oection 5(l)(d) and section 5(2) of the Prevention of Corruption Act, 1947. At the stage of hearing, a preliminary objection as to the maintainability of the appeal was raised on behalf of the State on the ground that the order impugned being purely an interlocutory order within the meaning of section 11(1) of the Act no appeal lay to this Court. On behalf of the appellant it was contended that the term "interlocutory order" has been used in the same sense as has been used in section 397(2) of the Code of Criminal Procedure and the same construction placed by this Court on the expression should apply in interPreting this expression, psrticularly v. hen the Act does not give any remedy to the accused. Per S. Murtaza Fazal Ali and Sen, JJ• . The order passed by the Special Judge was an interlocutory order and the appeal filed against that order in this Court is not maintainable.

{434 AO ' l(a) The expression interlocutory order in section 11(1) has been used in the natural sense and not in a special or in the wider sense in which . It is used 1 Y in section 397(2) of the Code. [433 GJ (b) On a true construction of section 11(1) and taking into C011Sideration the natural meaning of the expresoion interlocutory order there can be no doubt II that the order framing charges against the appellant under the Act was merely oo interlocutory order which neither terminated the proceeding nor finally decided the rights of the parties. Taking its natural meaning and applying the V. C. SHUKLA V. STATE !. _ 381 non·obstante clause the po8ition is that tbe provisious of the Code of Criminal A. Procedure are expressly excluded by the non·obstante clause and, therefore, section 397(2) of the Code cannot be called into aid for holding that tbe order impugned is not an interlocutory order.

[433 B-C] (c) The term "interlocutory order" used in section 397(2) of the Code relates to various stages of tbe trial, namely inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a aiminal c~ passes before it culminates in an acquittal, discharg~ or convic· lion. H"'ing regard to the very large ambit and range of tho Code the apre8sion interlocutory order would have to be given a broad moaning so as to achieve the object of the Code without disturbing or interfering with the fairness of the trial. [392 A-CJ (d) In Amar Nath v. The State of Haryana, although this Court held that an order summoning an accused was not an interlocutory order being a matter of moment which decided an important aspect of the trial it was, in a'sense, a final order which could be revised by the Sessions Judge or the High Court under section 397 of the Code.

In the circumstances of that case this Court held thait such an order could not be said to be purely an interlocutory order. [394 DJ Amar Nath & Ors. v. State of Haryana & Ors. [1978] 1 SCR 222, approved. (e) In Madhu Limaye v. State of Maharashtra this Court beld that an order framing a charge was not an interlocutory order and, therefore, a revisioii against such an order was competent before the Sessions Judge or the High Court. But in the circumstances of this case the order was not merely inter· locutory order but partook tho nature of a final order or at any rate an intermediate order so as to be taken out of the bar contained fu section 397(2) of the Code of Criminal Procedure. [395 H; 396 HJ Madhu Limaye v. The State of Maharashtra, [1978J 1 SCR 749 approved.

(f) The term interlocutory order used in the Code of Criminal Procedure bas to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in section 397(3) I? Of the Code would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts. If the right of revision was to be barred the provision containing the bar must be ·confined within the four corners of the spirit and the letter of the law. But :the same cannot be said of the Special Courts Act which is meant to cover only . specified number of crimes and criminals and the objective to be attained was . quick dispatch and speedy disposal of cases. [398 D-FJ ' State of Karnataka v. L. Munniswamy & Ors. [1977] 3 SCR 113; Parmesh· ~ wari Devi v. State & Anr. [1977] 2 SCR 160, held inapplicable. 2.

The heart and soul of the Special Courts Act being speedy disposal of cases, the provisions of the Act must be interpreted so as to eliminate all possi- ·ble delay or JUeans of adopting dilatory tactics by plugging every possible loop- . hole in the Act. It could not have been intended by Parliament that, while :the Criminal l'rocedure Code gives a right of revision against an order which, - \ tthoogh not pure! ¥ interlocutory•· ~ ~i! Mr intermediate or quasi-final, the A~ would provide a full-fledged appeal against such an order. It is mainly for the-purpose of avoiding flooding of this Court with appeals against the orders of the- Special Court framing the charges that a ,,non-obstante· clause· \\'as put in section 11 to bar appeals against any interlocutory order, \vhether it is intermediate I or quasi-final.

The Act applies only to a specified number of cases which ful- ~ fil the conditions contained in it and in view of its special features the liberty of ·the subject has been fu11y safeguarded by providing a three-tier system. [408 B-F] 3. The non-obstante clause in section 11 excludes an appeal from any interlocutory orders of a Special Court because such an exclusion is fully consistent with the object of the Act. Since the non-obstante clause expressly excludes; the provisions of the Code of Criminal Procedure, section 397(2) of the Code cannot be invoked because that would frustrate the very object which section· 11 seeks to subserve. [409 F-G] 4. When the Act excludes the Code then it obviously excludes an appear against any type of interlocutory order. The absence of revision is more than compensated by giving the accused a right of appeal against any judgment or order of the Special Judge as of right and on facts and law.

Secondly the triaf is held by a sitting Judge of the High Court who would have the power of revision if he was sitting in a High Court. Therefore it must be presumed that whenever a Special Judge passes any ihterlocutory order or an intermediateorder like framing of charges, he would do so only with full and complete· application of his mind and considering the various principles and guidelines. indicated by this C,ourt. It would not be in keeping with the dignity, decorum and status of the Special Judge to provide for an appeal even ngainst such. all' order which he is supposed to pass with full application of mind and du<> deliberation. [410 B-D] , 5. (a) The non-obstante clause has the effect of overriding and excluding the provision of the Code. [411 Dl Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr. [1953] SCR f,. referred to. (b) The term interlocutory is to be understood and taken to mean the converse of the term "final order".

Tne essential attribute· of an interlocutory order is that it merely decides some point or matter essential to the1 progress of the suit or collateral to the issue sought but is not a :final decision or judgment on ) the matter under issue. An intermediate order is one which is made between the commencement of.. an action and the entry of the judgment. [412 C, 414 D-E] . ' , Madlm Limaye v. The State of Maharashtra, [1978] 1 SCR 749, referred to; • (c) An order framing a charge being interlocutory falls squarely within the , )Ir. ordinary and natural meaning of the term "interlocutory order" as used in · section 11 (1) of the Act. f414 Fl l Sala1nan v. Warner [1891] 1 QBD 734; Ex Parte Mo(lre in Re Faithful [1885] 14 Q. B. D. 627; Bozson v. Altrincham Urban District Council [1903] 1 KBD 547; Shubrook v. Tufnell 9 Q. B. D. 621; Isaac;& Sons v. Salbstein & Anr. [1916] 2 KBD 139; Hunt v. Allied Bakeries Ltd. (1956] 3 All. E. R. 513; Salter I - Rex & Co. v. Ghosh [1971] 2 Q. B. D.

597 referred to. V. C. SHUKLA V. STATE 383 _, 6. A conspectus of the decisions of this Court establishes the tallowing propositions: (i) an order whic;h does not determine the right of the parties but only one aspect of tile suit or the trial is. an interlocutory order, (ii) the concept of interlocutory order has to be explained in contra-distinction to a final order. If an order is not a final order it wo~ld be an interlocutory order. (iii) one of the tests generally accept~~d by Courts is to see if the order is decided one way it may terminate the proceedings but if decided the otheT way, the proceedings would continue because i:he term interlocutory order in the Code of Criminal Procedure bas been used in a much wider sense so :;i. s to include even intermediate or quasi-final orders.

(iv) an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the Court so that nothing is left to be done by the Court thereafter. (v) Even if an Act does not permit an appeal • against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court under Article 136 even against an order framing charges against him. Thus it cannot be said that by not allowing an appeal against an order framing charges the Act works serious injustice to the accused. [424 E-H] In the instant case the order framing charges against the accused is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. [425 B-C] 7. The argument that a st.

iltute which gives a right of appeal should be liberally construed in favour of the accused so as not to deprive him of the right of appeal has no force· because in the instant case the right of appeal is expressly excluded by providing that no appeal shall lie against an. interlocutory order. Even by stretching the language of the section no right of appeal can be inferred when no such right has been conferred. The non-obstante clause cannot be construed to contain a right of appeal even against an interc:uloto1y order. [432 G-H] Desai, }. concurring: 1. The order framing a charge is an interlocutory order within the meaning of seCtion 11 (1) of the Act and an appeal against such an order is incompetent in view of the provisions contained in section 11 (2) and, therefore. the preliminary objection must be upheld. [468 E~ 2.

Interlocutory orders passed by a court disposing of ancillary disputes in the course of a judicial proceeding are steps taken by the court towards the final adjudication and for assisting the parties in the prosecution of their cases. They regulate the procedure only and do not affect any right or liability of the parties. An order does not cease to be an interlocutory order merely because it disposes of a certain aspect of the controversy between the parties. The test of finality is whether the onler finally disposes of the right of the parties. The r finality must be a finality in relation to the suit. If after the order the suit is still a live suit and the rights of the parties are stilI to be determined, no appeal lies against it under section 109A of the Code. Even if the order decides an important and even a vital issue in the case but leaves the suit alive and provides for its trial in the ordinary way it would still not be a final order.

Another test is that the decision, whichever way it is given,'if it finally disposes of the- matter in dispute it is final. The decision, if given in one way . it . will ,_ finally dispose of the matter in dispute, but if given in another it will allow the action to go on it is not final but interlocutory. [454 E; H; 455 B-D; 456 DJ Kuppuswami Rao v. The King [1947] F. C. R. 180; Abdul Rahmaii. v. D. K. Cassim & Sons 60 I. A. 76; Mohammad Amin Brothers Ltd. & Others v. Dominion of India and Others [1949-50] FCR, 842; Salter Rex & Co. v. Ghosh ,II [1971] 2 W. B. D. 597 referred to. 3. Jn tbe context of section 397(2) read witb section 482 of tbe Code this Court, with a view to providing a judicial umbrella of active supervision for reachlng Possible correctible injustice by activist attitudes and pragmatic inter· pretation found a tbird class of orders neitber interlocutory nor final but intermediate and therefore outside tbe bar of section 397(2) of the Code of Criminal Procedure.

But the test remained unaltered that every interfocutory order, merely because it disposes of an aspect in the course of a pCnding proceeding even adversely affecting a party for the time being would not be something other than interlocutory. To be specific the earlier test is not departed fro1:11 but the power Of supervision sought to be COll;S-°1lCted, ~ widened by asce:rfaining_ a. third class of orders namely, intermediate orders which are neither interloCUtory nor final. [462 B-D] Amar Nath & Ors. v. State of Haryana & Ors. [1978] 1 S. C. R. 222; Mohan Lal Magan Lal Thacker v. St11e of Gujarat [1968] 2 S. C. R- 685~ Madhu Liniay'I v. The State of Maharashtra [1978] l S. C. R. 749; Parmeshwari Dei·i v. State & Am. [1977] 2 S. C. R. 160 referred to. · 4. (a)There is n0 force in tP,e contention that frai;n. Jng of a char&e concludes an enquiry anterior to it and that it is likely to result in the deprivation of the liberty of the . accused because be is asked to face the trial.

[463 ppointed with the concurrence of the Chief Justice of India. The Special Court \VOuld always be amenable to the jurisdiction of tW. Court under Article 136. [468 B] 9. There is no substance in the contention that in narrowly interpreting the expression "interlocutory order" in section 11 (1) door may not be throv. ·n open for introduction of a procedure lacking in fairness and likely to. result in the ·'deprivation of personal liberty. [468 DJ ' Sinehal J. (dissenting). 1. The impugned order is not an interlocutory order. The accused is entitled as of right to prefer an appeal. [452 G] 2. Section 9 of tho Act provides that a Special Court could, in the trial of cases faIJing within its juriidiction, follow fhe, procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases before a Magistrate.

Section 239 is a valuable provjsion to the advantage of the accused because it envisages ·a careful and objective consideration by the Judge whether the charge against the accused is groundless or whether there is ground for presuming that he has committed an offence. Similarly when an order for the framing of a· charge under section 240 is passed it amounts to a decision that the accused is not entitled to discharge· under section 239, that there is ground for presuming that he has committed an offence triable· under Chapter XIX and that he should be called upon to plead guilty of it. Therefore, an order for framing of the charge is a serious matter for the accused, [434 H; 435 F·H] 3. Section 9 of the Special Courts Act does not provide tha. t an appeal against the order of the Special Court sha11 be heard and decided according to the procedure laid down in the Code. Section 11 which deals with appeals starts with a non-obstante clause.

Neither section 11 nor any other section states that the Code shaJl apply to the hearing of an appeal. At any rate the Code has no application in so far as the right of appeal and the fonn of appeal are concerned. f436 C & El 4. It is true that there is no right of appeal against an interlocut'1ry order under section 11 of the Act. The clear propositions laid down by this Court on the meaning of the words_ "fina. 1" and "interlocutory" are (i) that an order O may be "final" for one purpose and "interlocutory" for another and (ii) that an order may be final as to a part and inter-locutory as to a part. The meaning of the two \\'Ords has to be determined in relation to the particular purpose for which it is required to be given. [436 G; 438 G] Moha11 Lal Magan Lal Tl! aker v. State of Gujarat, [1968] 2 SCR 685 referred ; ' to. (iii) An order may also be conclusive with refNence to the stage at which it is made. Parameswari Devi' v. State [1977] 2 S. C. R. 160 referred to.

(iv) The expression 'interlocutory order" has been used in section 397(2) of the Code in rL restricted sense. It denotes orders of a purely interim or temporary nature which do not' decide or touch the importan~ rights or liabilities of the parties and that any order which substantively affects the rightc; of the accused is not an interlocutory order. [441 A-B] Amar Nath and others v. State of Haryana and others (1976] 1 S. C. R. 222 referred to. On this reasoning the order for the framing of' a charge aga. inst the accused in this case ca·nnot be said to be an interlocutory order. [442 A] (v) An order rejecting the plea of the. accused on a point which, when . accepted, will conclude a particular proceeding is surely not an interiocutory order within the meaning of section 397(2) of the· Co \ It will be important to note that the word 'interlocutory order' used in this sub-section relates to various stages of the trial, namely, appeal, inquiry, trial or any othe. r proceeding.

The object seems to be to cut- ' down the delays in stages through which a criminal case passes before ' it culminates in an acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it has got a wide and diverse area of jurisdiction inasmuch as it regulates the procedure of trial not only of the large number of offences contained in the Indian Penal Code but also in other Acts and statutes which apply the CC)! :le of Criminal Procedure or which are statutes in pari materia the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. Fortunately, however, there are \1. few decisions which have interpreted the expression 'interlocutory order' as appearing ins. 397(2) of the Code. Before we come . to the d~cisions, . certain features may be noticed.

here. In the first place, the. concept of appeal against interlocutory order seems to be by an~ large foreign to the scl1eme of the Code or for that matter the sche! lle o~ ihe Code of Cfiminal Proced~re right from, 1872 uptodate, Appeal' has been·pr9vid~d only against' fulal ~ders and not against in(erlocutory o. rders. Inste~d of appeal, the Code of 18~8 as also the, Code of 1812 contained powers of revision which vested in_'the . High, Court . to reyise . ' ~ any order pas. sect b:r. a criminal court. , In the.. previous Co provided for in the Code of Criminal Procedure. Even in the present Code, the inherent power of the court has been fully retained under sec. 482 which runs thus :- "482. Nothing in this Code shall be deemed to limit o. r affect the inherent powers of. the High Court to make ·su6Ji V. c. SHUKLA v. STATE (Fazal Ali. J.

) 393 j orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise tq secure the ends of justice. " One of the questions that arose was as to whether an interlocutor]' order which could be revised by the Sessions Judge, can be further revised under s. 482 of the Code by the High Court because s. 397 (3) permitted the power ol revision to be exercised only by the High Cowt or the Sessions Judge but not by both of them. The ! imitation con· tained ins. 397(3) runs as follows:- "(3) If an application nnder this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. " Sub--scction (3), however, does not limit at all the inherent power of the High Court contained in s. 482, as mentioned above. It merely curbs the revisionnl power given to the High Court or the Sessions Judge under s.

397(1) of the Code. We need not dilate on this aspect because we are not called upon tq consider the interpretation of s. 397(3) of the Code, although in one of the cases cited before us this aspc. :t has been gone into and that is why we have indica. ted the same. Mr. Mridul contended that as the Special Courts Act has fully applied the procedure of the Code to the trial of the offences by the Special Judge, the expression 'interlocutory order' has, been used exactly in the same sense as in s. 397(2). In other words, the contention was that s. l l of the Act is modelled on s. 397 (2) of the Code by telescoping sub-section (2) of the said section into s. 11 (1) of the Act. In support of his contention reliance was placed in the case of Amar Nath & On. v. State of Haryana & Ors. (') and particularly to the following observations u}ade by this Court :- "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 me. rely 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 right of the accused, ar 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 tl1e basis for insertion {I) [1978] 1 S. CR. 222. 4-21 SC! /80 [1980) 2 S. C. R. of this particular provision ins. 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 doub~ amount to interlocutory orders against which no revision would lie under s. 397 (2) of the 1973 Code. But orders which a.

re 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-orders so as to be outside the purview of the revisional jurisdiction of the High Court. " In that case, one of us (Fazal Ali, J. ) was a party to the decision and spoke for the Court. It is no doubt true that this Court held that an order summoning an accused was ! lot an interlocutory order but being a matter of moment it decided an important aspect of the trial and was, therefore, in a sense a fina\ order which could be revised by the Sessions Judge or the High Court under s. 397 of the Code. The observations made by this Court, however, have to re read in the light of the P. eculiar facts of the said case. What had happened in that case was that an FIR was lodged at police station Butana, District Karna! , mentioning a number of accused persons as having participated in the occurrence.

The police, after holding investigations, submitted a chargesheet against the otl. ler accused persons except the appellants before the Supreme Court against whom a final report under s. 173 of the Code was given by the police. The report was placed before a Judicial Magistrate, First • Class who, after perusing the same, accepted the report and released the appellants. Thereafter. the complainant filed a revision before the Additional Sessions Judge . against the order of the Judicial Magistrate releasing the appellants but the revision petition was dismissed by the Judge. Thereafter the informant filed a regular complaint before the Judicial Magistrate against all the accused including the . appellants. The learned Magistrate al:er having examined the complaint found that no case against the appellan:S was established. A further revision . / ..

was taken up beforo the Sessions Judge who accepted the revision and directed further inquiry, on receipt of which the Magistrale issued summons to the appellants straightaw~y. Against this order the appellants went up in revision to the High Court which dismissed the petition in limine, obviously on the ground that the order passed by the Magistrate was an interlocutory one. That is how the matter came up by special leave before this Court. It would thus be seen that before the stage of trial of the case reached the appellan! s had been released by the Magistrate who accepted the final report that no case was made against them. Even a complaint which was in the ! .... v. c. SHUKLA v. STATE (Fazal Ali, J. ) 395 nature of a protest petition against the final report filed before the A Magistrate was also dismissed.

When the Magistrate issued summons in pursuance of an cwJcr of further inquiry by the Sessions Judge cognizance was· taken against the appellants who were ordered to be put on trial because the order summoning the appellants virtually r amounted to asking the accused to fao2 the trial. It was in the B background of these circumstances that this Court held that such an order being a matter of moment affecting important rights of the parties, could not be said to be purely an interlocutory order. We have no doubt that the decision of this Court, referred to above, was absolutely correct. Iu fact this part of the decision was endorsed by \a later decision of this Court in the case of Madhu Limaye v. The c State of Maharashtra. C) The Court observed thus- "In Amar Nath's case, as in this, the order of the Trial Court issuing proo2ss against the accused was challenged and the High Court was asked to quash the criminal proceeding either in exercise of its .

inherent power under D section 482 of the 1973 Code corresponding to section 561A of the Code of Criminal Procedure, l 898-hereinafter called the 1898 Code or the old Code, or under section 397(1) of the new Code corresponding to s• find ourselves in complete agreement with the exposition of the law C by the learned Judges who decided the said case. w~ will d•eal with . a broader and a wider aspect of the matter in a later part of our judgment when we deal with the scope and ambit of the Act. We might rcitemte he. re even at the risk of repetition that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure com- D plete fairness of the trial because tj]:Jc bar contained in s. 397 ( 3) of the Code would apply to a variety of ca~s coming up oofore the courts :not only being offences under t. he Penal Code but under numerous Acts. If, therefore, the .

right of revision was to be barred, the pro· vision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, the revisional . E po~w of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but inter=diate or quasi final. The same, howe. ver, in our opinion, could not be said of the Special Courts Act which was meant to cover only specified number of crimes ~ and criminals and the objective attained was quickest despatch and speediest disposal. Mr. Mridul further relied on a decision of this F Court in the case of State of Karnataka v. L. Muniswamy & Ors. (') and particularly on the following observations made by Chandrachud, ' J. as he then was : "O:n the other hand, thoe decisions cited by learned counsel for the respondents in Vadilal Panchal v. D. D. G Ghadigaonkar and Cemury Spinning & Manufacturing Co. v.

State of Maharashtra show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed i'. n the latter case, the order framing a charge H (I) [1947] F. C. R. 180. (2) [1977] 3 SCR 113. v. c. SHUKLA v. STATE (Fazal Ali, !. ) 399 I. - -l . affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants tbe framing of the charge. It cannot blindly accept the decision of th~ prosecution that the accused be asked to face a trial.

" 8 Great stress was laid by the learned counsel for the appellant on the fact that tbe Court had observed that the stage of framing of charges was a very important matter beca11Se it affected a person's liberty substantially and, theref2re, the Court should consider judicially whether the materials warrant framing of th~ charge. There can be absolut~ly no doubt regarding the correctness of the observations made by Chandrachud J. This decision, however, is no authority for holding that an order framing a charge is not ah interlocutory order. In the aforesaid case, this Court was called upon to exercise its. jurisdiction under s. 482 of the Code, tjlat is to say, the inherent powers of the Court was invo! « This brings us to the discussion of the main preliminary objection taken by the Solicitor General. The Solicitor General submitted that s. 11, which is extracted below starts with a non obstante clause which completely excludes the application of the provisions of the L.

Code of Criminal Procedure and therefore the decisions of this Court rendered on an interpretation of s. 397 (2) of the Code would have no application whatsoever in considering the scope and ambit of s. 11 : 'Appeal 11. (I) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the supreme Court both on facts and on law. (2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of any judgment, sentence or order of a Special Court : Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satis- tied that the appellant had sufficient . cause for not preferring the appeal Within the period of thirty days.

" It was further contended that even if the non obstante clause was not there, the aim anal object of the Act being speediest disposal of cases, cutting down all possible delay, the term 'interlocutory order' should be so interpreted so as to advance the object of the Act rather than retard it. As against this, Mr. Mridul, counsel for the appellant, submitted that the 11011 obstante clause does not change the complexion of the term 'interlocutory order' which is a term of well known . k. ,. -1 significance and has been construed by this Court in s. 397 (2) of the Code and the same principle would apply in interpreting this expression particularly when the Act does not give any remedy by way of revision to the accused against an order which may not be purely interlocutory but which is undoubtedly a matter of moment and therefore an intermediate or a quasi final order.

It was further argued that as an order framing charges against the accused affects the liberty of the u subject, the Act appears to have given a wider connotation to the term so as to provide for appeal against that order to the highest court of the country. In appreciating the respective arguments put forward by counsel for the parties we may have to consider the background, the aim, the object and scheme of the Act. It may be mentioned here that before the Act was passed a Bill was moved in the Parliament which was adopted by the Government and the President of India was requested to make a reference to this Court regarding the constitutional validity of the Act. 1! The reference was heard by seven Judges particularly on the various constitutional aspects and we would have to advert to some important observations made by this Court in the Reference in order to highlight the main object of the Act.

To begin with we may glance through extracts of the speech of the Union Home Minister at the time of introduction of the Bill in the Lok Sabha. While introducing the Bill, the Ho11'ble Home Minister laid stress on the dominant object of the Bill which is contained in the extracts from his speech given below :- "It is the obligation of the state not only to prosecute persons involved in such crimes but also to make arrangements for the speedy judicial determination of such v. c. SlllJKL. \ v. STATE (Fazal Ali, J. ) prosecutions. The ordinary criminal courts for a variety of reasons, cannot reasonably be expected to bring these trials to an early conclusion. Government, therefore, considers that only if special courts are established at a high level lo deal exclusively with such offences, the trial of these cases will not be unduly protracted. " (Emphasis ours) (Lok Sabha Debates, Vol. X,XIJ, No. 8, dated 28-2-79, Sixth Series p. 278). r .

l The details of the aims and objects of the Act are further reflected in the Preamble of the Act which contains several clauses, the relevnnt portions of which may be extracted thus : "Whereas Commissions of Inquiry appointed under the Commissions of Inquiry Act, 1952 have rendered reports disclosing the existence of prima facie evidence of offences committed by persons who held high public or political offices in the country and others connected with the commission of such offences during the operation of the Proclamation of Emergency, dated the 25ib June, 1975, issued under clause (1) of 1\rticle 352 of the Constitution : And Whereas the offences referred to in the recitals aforesaid were committed during the operation of the said Proclamation of Emergency, during which a grave emer- • gency, was clamped o~ the whole country, civil liberties were curtailed to a great extent, important fundamental rights of the people were suspended, strict censorship was imposed on the press, judicial powers were severely crippled and the parliamentary democratic system emasculated; ' And whereas the ordinary criminal courts due to congestion of work and other reasons cannot reasonably be expected to bring those prosecutions to a speedy termina- ..

lion; And whereas it is imperative for the efficient functioning of parliamentary democracy and the institutions created by or under the Constitution of India that the commission of offences referred to in the recitals aforesaid should be judicially determined with the utmost dispatch; 404 SUPREME COU~T REPORTS [J98uj 2 S. C. F. And whereas it is expedient to make some procedural changes whereby avoidable delay in the.

final determination of the innocence or guilt of the persons to be tried is eliminated without interfering with the right to a fair trial; The effect of the speech given by the Home Minister and the recitals in the Preamble bring out the following special features of the Act :-- (l) That the Act makes a distinct departure from the trial of ordinary offences by criminal courts in that the trial of the offences is entrusted to a very high judicial dignitary who is a sitting Judge of the High Court to be appointed by the Chief Justice concerned on the recommendations of the Chief Justice of India. This contains a built-in safeguard and a safety valve for ensuring the independence of judiciary on the one hand and a complete fairness of trial on the other. In appointing the Special Judge, the Government has absolutely no hand or control so that the Special Judge is appointed on the recommendations of the highest judicial au,thority in the country, viz. , the Chief Justice of India.

This would naturally instil great confidence of the people in the Special Judge who is given 'a very elevated , status. (2) Secondly, whereas in ordinary cases the matter is straightaway brought to the oourt after the investigation is completed, the Act requires certain preliminary safeguards before the matter is placed before the Special Court. In the first place, the allegations made against the accused have been scrutinised by a High Powered Commission, presided over by Mr. Justice Shah, a retired Judge of the Supreme Court, as indicated by the Home Minister in his speech while introducing the Bill. Secondly, the matter does not rest there but a thorough investigation has been made not by the ordinary police but by the C. B. I. Thirdly, after the - investigation is made, the matter is placed before the Central Government which makes a declaration after being satisfied about existence of prima facie v. c. SHUKLA V. STATE (Fazal Ali. J.

) ·~ evidence of the commission of an offence alleged ' to have been committed by an accused. It is only after such a declaration is made that the matter is brought before the Special Court, designated by the Central Government. It thus appears that before a case comes to the Court a three-tier system has already been adopted which eliminates any possibility of miscarriage of justice or any clement of unfairness or foul play. Furthermore, although the Special Judge functions as a Sessions Judge for the purposes of the trial and follows a procedure provided for the trial of warrant cases, the fact remains that the Judge is a high judicial dignitary, being a sitting Judge, not subordinate in any way to the Government. The Special Judge appointed, therefore, is a very experienced judicial officer who must be presumed to act in an extremely just and equitable manner keeping himself alive to the rules • • of natural justice and fair play.

In fact, this Court has held in a number of cases That where a power is vested in a very high authority, the abuse of the power is reduced to the minimum. In this connection, we may refer to two decisions of this Court. In the case of K. L. Gupta & Ors. v. The Bombay Munidpal Corporation & Ors(') this Court observed as follows :- "The fact that no appeal from the decision under s. 13 was provided for is a matter of no moment for the authority under s. 13 is no less than the Municipal Commissioner himself or the Chief Officer of the Municipal Borough or a person exercising the power of an Executive Officer of any local authority. When the power had to be exercised by one of the highest officers of the local authority intimately connected with the preparation of the development plan in all its stages, it is difficult to envisage what other authority could be entrusted with the work of appeal or revision. " (1) [1968] I SCR 274.

A similar view was taken by this Court in the case of Chinta Lingam & Ors. v. Government of India & Ors. ( ) This Court observed thus : "In these circumstanc. es the absence of a provision for appeal or revision can be of no consequence. At any • • rate, it has been pointed out in more than one decision of this Court that when the power has to be exercised by one of the highest officers the fact that no appeal has been provided for is a matter of no moment. ....... It was said that though the power was discretionary but it was not necessarily discriminatory and abuse of power could not be easily assumed. There was moreover a presumption that public officials would discharge their duties honestly and in accordance with rules of law. " Although these judgments were rendered in explaining the scope of Art.

14 of the Constitution of India but the principle deduced from these decisions applies to the present case in order to show that fairness of the trial bas to be presumed when a person of the status of a sitting High Court Judge tries the case against an accused. Another important feature of the Act is that unlike other cases, an appeal against the decision of a Special Court lies to the highest Court of the country, namely, the Supreme Court, and the appeal lies as a matter of right both on facts and on law. In other words, any judgment rendered by the Special Court is to be examined by the highest court of the country which is bound to consider the diverse aspects of the materials, evidence and findings given by the Special Court without being fettered by any legal or factual restriction. Thus, an analysis of the aforesaid features clearly reveals that no accused can have any genuine grievance against the fairness of the trial that is meted out to him by the Act.

If any error of fact or law is committed by the Special Judge that can be corrected by this Court. Coming back now to the question at issue, the dominant purpose of the Act is to achieve not only speedy determination but a determination with the utmost despatch. We may refer to certain observations made by this Court while deciding the Presidential Reference in order to emphasise the most expeditious disposal of the case, a ff goal which the Act seeks to subserve. (I} [1971] 2 SCR 871. v. c. SHUKLA v. STATE (Fazal Ali. J. ) 407 In In Re The Special Courts Bill, 1978,('), Chandrachud, C. J. A speaking for the Court observed as follows :- ~ " ....

In relation to the objective mentioned in the sixth paragraph of the Preamble that it is imperative for the functioning of parliamentary democracy and the institutions created by or under the Constitution of India that the B commission of such offences should be judicially determined with the utmost dispatch; and the latter in relation to their status, that is to say, in relation to the high public or political office held by them in India. c If it be true, and we have to assume it to be true, that offences were committed by persons holding high public or political offices in India under cover of the declaration of emergency and in the name of democracy, there can be no doubt that the trial of such persons must be concluded D with the utmost dispatch in the interest of the functioning of democracy in our country and the institutions created by our Constitution.

Longer these trials will tarry, assuming the charges to be justified, greater will be the impediments in fostering democracy, which is not a plant of easy growth. If prosecutinns which the Bill envisages are allowed E to have their normal, leisurely span of anything between 5 to 10 years, no fruitful purpose will be served by launching them. Speedy termination of prosecutions under the Bill is the heart and soul of the Bill. " Similarly, Krishna Iyer J. observed as follows :- F "And so, to track down and give short shrift to these heavyweight criminaloids who often mislead the people by public moral weight-lifting and multipoint manifestoes is an urgent legislative mission partially undertaken by the Bill under discussion. G It is common knowledge that currently in our country criminal courts excel in slow-motion.

The procedure is dilatory, the dockets are heavy, even the service of process is delayed and, still more exasperating, there are appeals H upon appeals and revisions and supervisory jurisdictions, (J) fl979) 2SCR 476. (1980] 2 S. C. R. bailing and baulking speedy termination of prosecutions, not to speak of the contribution to delay by the Administration itself by neglect of the basic necessaries of the judicial process. " • The aforesaid observations, therefore, clearly show that the heart and soul of the Act is speedy disposal and quick dispatch in the trial of these cases. It is, therefore, manifest that the provisions of the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case may be delayed.

Indeed if this be the avowed object of the Act, could it have been intended by the Parliament that while the Criminal Procedure Code gives a right of revision against an order which, though not purely interlocutory, is either intermediate or quasi final, the Act would provide a full fledged appeal against such an order: If the interpretation as suggested by the counsel for the appellant is accepted, the result would be that this Court would be flooded with appeals against the order of the Special Court fratning charges which will impede the progress of the trial and delay the disposal of the case which is against the very spirit of the Act. We • are of th0 opinion that it was for this purpose that a non obstante clause was put iu s. 11 of the Act so as to bar appeals against any , interlocutory order whether it is of an intermediate nature or is quasi final.

The Act applies only to specified number of cases which fulfil the conditions contained in the provisions of the Act and in view· of its special features, the liberty of the, subject has been fully safeguarded by providing a three-tier system as indicated above. Let us now examine the scheme of the Act. Under s. 4 a Special Court is to take cognizance or try cases as are instituted before it or transferred to it as hereinafter provided. Section 5 provides that if the Central Government is of opinion that there is prima facie' evidence of the commission of an offence and that in accordance with , the guidelines contained in the Preamble, the said offence should be dealt with under this Act, the Central Government shall make a ->· declaration to that effect. In other words, s.

5 imposes a further ~ screening process by providing that the Central Government which is a very high authority should satisfy itself that a prima facie case is made out before making a declaration and sending the case to the Special Judge. Section 6 provides that after a declaration unde. r f s. 5 is made, notwithstanding anything in the, Code the prosecution in v. c. SHUKLA v. STATE (Fazal Ali. /. ) 409 respect of the offence which is the subject matter of the declaration and any prosecution pending in any Court shall stand transferred to a Special Court designated by the Central Government. Thus, we find that s. 6 makes a distinct departure from the provisions of the Code in entrusting the trial of the offence to a Special Judge, designated by it. We are not concerned with s. 7 which deals with the transfer of any revision or appeal pending in any Court of Appeal or Revision which would stand transferred for disposal to this Court.

Section 8 provides for the joint trial of the offence against the accused in accordance with the Code. Thus, the provisions of the Code are for the first time applied by s. 8. Similarly, s. 9(1) enjoins that a Special Court shall in the trial of cases before it follow the procedure prescribed by the Code for trial of warrant cases before a Magistrate. Similarly, the . provisions of the Code in respect of ss. 307 and 308 are also applied by virtue of s. 9(2). Sub-section (3) appears to be the residuary clause which applies all the provisions of the, Code which are not inconsistent with the provisions of this Act. Here also, a departure from the Code is indicated in that the provisions of the Code would apply where the same are either expressly or by necessary intendment excluded. Sub-section ( 3) of s. 9 further provides that a Special Court shall be deemed to be a Court of Sessions and shall have the powers of a Court of Sess'ons.

This part of the section merely creates a legal fiction but does not reduce the status of a sitting High Court Judge. Section 10 em- ' powers the Supreme Court in certain cases to direct any particular case to be transferred from one Special Court to another. Then we come to s. 11 (1) which has already been extracted. The non obstante clause which starts with ~e words "Notwithstanding anything in the Code" excludes appeals from any interlocutory order of a Special Court. The reason for this exclusion is not far to seek. In the first place, such an exclusion is fully consistent with the object of the Act, vi7. , to secure t11e quiclest dispatch and au expeditious disposal o~ the case so as to cut down all delays which may be callied by providing for appeal against interlocutory orders also. As the non obstante clause expressly excludes the provisions of the Code • of Criminal Procedure, we cannot call into aid the provisions of s.

397(2) of the Code which would amount to frustrating the very object which s. 11 seeks to advance. Mr. Mridul realising the force 0f the non obstante clause has submitted a very attractive and ingenious argument. In the first place, he submitted that as the Act does not provide for any revision against intermediate or quasi final orders. and as the object was to give a very fair trial to the accused, hence instead of a revision, an appeal has been provided. We are, 5-21 SCI/80 A however, unable to agree with this argument, which is not at all ~ . . borne out by the plain language employed ins. 11(1). When the Act exclud01; the Code then it is obvious that it excludes an appeal against any type of an interlocutory order. The absence of revision 1 is more than compensated by giving the accused a right of an appeal against any judgment or order of the Special Judge as of right and B open on facts and law. There is one more reason why the power of revision has been excluded.

The trial is held by a sitting High Court Judge who also would have the power of revision if he was sitting t in a High Court. In these circumstances, it must be presumed that ~ whenever a Special Judge passes any interlocutory order or an intermediate order like framing of charges, he would do so only with full and complete application of his mind and considering the various principles and guidelines indicated by this Court in several decisions, some of which have been discussed above, and, therefore, it would not be in keeping with the dignity, decorum and status of the Special Judge to provide for an appeal even against such an order which he is supposed to pass with full application of mind and due delibe- D ration. It was t)1en contended by the learned counsel for the appellant that the 11011 obstante clause should be interpreted according to the salutary principles laid down by this Court. In support of his submission, he relied on a decision of this Court in the case.

of Aswini E ' Kumar Ghosh & Anr. vc Arabinda Bose & Anr. (') where Sastri, C. J. observed as follows "It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and F the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant r existing laws which is inconsis. tent with the new enactment. • G The true scope of the enacting clause must, as we have • observed, be determined on a fair reading of the 'Mlrds used ir. their natural and ordinary meaning. " 1 Similar observations were made by Mukherjee J. ( ) : "In my opinion, the section on its negative side elimi- H nates so far as the Supreme Court Advocates arc con- (1) [! 9531 SCR I. ·v. c. SHUKLA v. STATE (Fazal Ali. J. ) 411 ! ismissing an action on a point of law raised by the pleadings was not 'final" within the old Ord. 58, r.

3, because had the decisions been the other way the action would have proceeded. " (I) [1891] 1 Q. B. 234. (2) 6 Q. B. D. 75. (3) 22 Q. B. D. 175. v. c. SHUKLA v. STATE (Fazal Ali, J. ) 413 Halsbury's Laws of England (Third Edition, Vol. 22, pp. 743-744) ' , describes an interlocut. ory or final order thus : • "InterlOCl! tory judgment or order : 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 in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations 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 general a judgment or order which determines the principal matter in question is tenned 'final'.

" At page 743 of the same volume, Blackstone says thus : "Final fudgments are such as at once put an end to the action by declaring that the plaintiff has either entitled him- • self, or has not, to recover the remedy he sues for ..... . Four different tests for ascertaining the finality of a judgment or Olfder have been suggested : (I) Was the order made • upon an application such that a decision in faV'Our of } either party would determine the main dispute? (2) Was it made upon an application upon which the main dispute could have been decided ? (3) Does the order, as made, detennine the dispute? (4) If the order in question is reversed, would the action have to go on. " Corpus Juri order of the Special Judge impugned in the appeal is undoubtedly an l interlocutory order and therefore falls within the mischief of s. 11 ( 1) of the Act. n Similarly, another test to determine w,hether or not an order is un I interlocutory order was evolved by Lord Alverstone C. J. in the case of - ,,.

--- - - v. c. SHUKLA v. STATE (Fazal Ali, J. ) 417 iBozson v. Altrincham Urban District Council(') who observed as • :follows : "It seems to me that real test for determining this question ought to be this : Does the judgment or order, as made, ' finally dispose of the rights of the parties '! If it does, then I think it ought to be treated as a final order, but if it does not it is then, in my op. inion, an interlocutory order. " Sir Jeune P. concurred with Lord Alverstone while Lord Halsbury preferred to follow an earlier decision in the case of Shubrook v. 7ufnell(ZJ. In Shubrook v. Tufnell what happened was that an action was filed by the lessee against lessor to recover damages caused to them 'by the defendant's making a drain through the adjoining land. By an order in Chambers the action was referred to the arbitrator who sent the case to the Court for its op:nion.

In that case the po:;ition was that if the case was referred back to the arbitrator, the award had to be ·given by him, if not, then judgment was to be entered for the defendant. The question was whether an appeal lay to the Court of Appeal against the reference made by the arbitrator. In view of the peculiar circumstances of the case, Jessel, M. R. with whom Lord Lindley concurred, ! held that appeal lay as the order seeking the opinion of the court was not an interlocutory order. It is manifest that in this case the proceedings would have terminated. In any event if the case was referred ba. ck to the arbitrator, then the arbitrator would have to give his award and therefore the reference proceedings terminated. · If, however, the reference was not made to the arbitrator, then the judgmen~ was to be entered for the defendant. Thus, the order passed in this case un- These principles apply to civil as also to criminal cases as pointed a distinction without any difference.

This court as also the Federal Court have clearly pointed out that so far as the tests to be applied to determine whether an order is final or interlocutory, apply as much to a civil case as to a criminal ease. Furthermore, as already indicated, it is impossible to spell out the concept of an interlocutory order unless it is understood ic1 contradistinction to or in contrast with a final order. This was held in o number of cases referred to, including Madlut Limaye's case (supra) which has been expressly stressed by us in an earlier part of the judgment. For these reasons, therefore, the contention of the learned counsel for the appellant on this aspect of the matter faiis and is hereby overruled.

• The last argument advanced by the learned counsel for the appclfont, which also appears to be very attractive, is that accepting the tests referred to above and applying to the facts of the present case, the order impugned should be construed as a final order inasmuch as the order completely terminates the proceedings preceding the trial. In R other words, it was contended that until the charge is actually framed the trial does not start and all proceedings up to the framing of the \ ,,' 6-21SCI/80 426 SUPREME COUH REPORTS [1980] 2 S. C. R. charges are in the nature of an inquiry or a sort of a pte-trial proceeding which finally culmiaates either in the order of discharge or in the o! lder framing of charges. Thus, in any event, an order framlng charges must necessarily be held to be a final order and not, an interlccutory one. In support of this contention the learned counsel relied on a decision of a Full Bench of the Jammu & Kashmir High Court in the case of State v.

Ghani Bandar(') in which the leading judgment was delivered by one of us (Fazal Ali J. ). It is true that the Jammu & Kashmir High Court on a. consideration of a large number of auflllorities of the various High Courts in India, observed as follows : "On a careful consideration, therefore, of the authorities alld analysis of the various provisions of the Code I am of the opmion that 'trial' in a warrant case commences only when the charge is read to the accused and he is called upon to answer the charge and until the proceedings have reached this stage proviso (a) to clause (1) of s. 350 does not come imo play and the accused has no right to ask the Court to rcsummon the witnesses. In the present case, it appears, the case is yet at an inquiry stage, and therefore, the Ma::,;strate was not right in acceding to the prayers of the accused. " This decision, however, in our opinion, does not appear to be of any assistance to the appellant for the reasons that we shall give hereafter.

In the first place, the decision was rendered not on the provisions of the Code of 1973 but under the provisions of the Crin:Hnal Procedure Code of the Jammu & Kashmir State which were quite different from the provisions of the Code of 1973 which does not apply to that State. Secondly, it would appear that the Criminal Procedure Code of 1872 (Act X of 1872) expressly contained a definition of the word trial which was defined thus : " "Trial" means the proceedings taken in Court after a charge has been drawn up, and includes the punishment of the offender : It includes the proceedings under chapters XVI and XVIII, from the time when the accused appears in Court. " • Thus, th~ word 'trial' clearly meant the proceedings after charges had been drawn up and included even the punishment of the offender. Furthermore, the definition was wide enough even to include proceedings right from the time when the accused appeared in Court to tbe {I) A. I. R: 1960 J & K 71. v. c. SHUKLA v.

STATE (Fazal Ali, J. ) 427 culmination of the proceedings. This definition is to be found in s. -l A of the Act X of 1872. The said Act defined 'inquiry' thus : " "Inquiry" includes any inquiry which may be conducted by a Magistrate or Court under this Act. " • Both the definition of the word 'trial' as also that of 'inquiry' underwent a radical change in the Code of'l898. The Code of 1898 com- B pletely dropped the definition of the word 'trial' and instead widened the definition of the term 'inquiry'. Under s. 4(j) of the Code of 1898, 'inquiry' was defined thus : ) " "Inquiry"--"inquiry" includes every inquiry other than - a trial conducted under this Code by a Magistrate or Court. " c Thus, the position was that under the Code of 1898, trial was not defined at all but all proceedings except the trial were held to be inquiry within the meaning of S· 4(j).

So far as the Code of 1973 is concerned, with which we are dealing, while the definition of inquiry is retained, trial has not been defined at all. In the instant case, s. 9 (1) of thc Special Courts Act clearly provides that the Special Court slmil in the D trial of cases before it follow the procedure prescribed by the Court for trial of warrant cases before a Magistrate. Let us examine the position and the various aspects of the procedure laid down for the trial of warrant cases under the Code as also under the Code of 1898, as > amended in 1955. So far as the decision of the J&K High Court, re- E ferred to above, is concerned it was given under the Criminal Procedure Code of Jammu & Kashmir prior to the amendment of 1955 which, though passed by the State Legislature, was enforced sometime after 1964.

Prior to the amendment of 1955, under the Code of 1898, the procedure for trial of warrant cases by a Magistrate was, the same whether the case was instituted on a police report or otherwise than on a F police report. The procedure is found in the unamended ss. 251 to 254 . onwards which may be extracted thns : "251. Procedure in warrant cases-The following procedure shall be observed by Magistrates in the trial of warrant cases. G 252. Evidence for prosecution-( 1) When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution : Provided that the Magistrate shall not be bound to hear H any person as complainant in any case in which the complaint has been made by a Court.

42S (2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary. 253. Disc_harge of accused-(]) If, upon taking all the c\'iclcncc referred to in sect;on 252, and n1aking such examina~ion (if any) of the accused as the Magistrate thinks n;:ccssary, he find~ that no case against the accu. ;;ed has b~en n1;. iclc out which, if unrcbutted, would V11arrant his conviction, rhc Magistrate shall discharge him. c (2) Nothing in this section shall be clecmeJ to, prevent a ~lag;s1rate from discharging the accused at any previous stage oi the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 254.

Charge to be framed when offence appears proved D -lf, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is oi 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 O! 'inion could be adequately punished by him he shall E lramc in writing a charge against the accused. " It is, therefore, clear that under the provisions extracted above) rhcrc was no question of the trial starting until the charges were framed' because under s. 252 when the accused appeared or was brought before the Magistrale, the Magistrate had to hear the complainant and take F evidence as may be produced by him. After summoning the witnesses under s. 252(2), the Magistrate had to take the evidence and after cx«n1ining the san1c he had to detenninc 'vhether a case \Vas made out by the prosecution which.

if unrebuttcd, would warrant the conviction of the accused. If the Magistrate was of the opinion from the examina· tion of the evidence taken at the earlier sta,:c that the accused had committed an offence triable under the said Chapter, then only charge was to be framed. By the amendment of 1955, however, the procedure of the trial of warrant cases was split up into two parts. By the first part a drffercnt procedure was ind'cated, (which is contained in s. 251) in cases starting on the basis of a complaint whereas under s. H 251A a separate procedure was evolved for cases triable on the basis of a police report. We are, however, not concerned with either s. 251 or 251A as amended in 1955. So far as the decision of the J & K + v. c. SHUKLA v. STATE (Fazal Ali. !. ) 429 High Couit is concerned, that was given on the basis of the Code of 1898 before the amendment of 1955 and was quite correct having • regard to ss.

251, 252 and 253 of the Code of 1898, prior to the amendment of 1955, because under that procedure there could be no question of there being any trial until the charge was framed, because the court had to hear the complainant, record evidence even before the charge was framed. In these circun1stances, therefore, the decision of out compliance with s. 207 of the Code for the supply of the copy of the police report and other documents to the accused. Then come s;. 239 and 240 which are both important. Section 239 provide> that if, upon considering the police report and the documents sent with it under s. 173, and making such examination, if any, of the accused 'IS the Judge thinks necessary, and after giving the prosecution and the accused an 0pportunity of being heard, the Judge considers the charge against the nccnsed to be groundless, he shall discharge him. It is obligatory, in that cveniuality, for the Judge, to record his reasons for so doing.

The accused is thus entitled to an order of discharge if the Judge, after complying with the procedure prescribed by s. 239, waches the conclusion that the charge against him is "groundless". The section is of great importance to the accused for it gives him an opportunity of making a statement, if the Judge tl•inh it necessary to give him that opportunity, and it also gives him the opportunity of being heard at that early stage of the case, so that, in a proper case, he can look forward to an order of discharge at the threshold pf the trial and be spared any further proceeding. In fact s. 239 envisages a careful and objective consideration of the question whether the charge against the accused is groundless or whether there ic, ground for presuming that he has committed an offence. What s. 239 pr~scribcs ;5: not, thcreforl\ an c111pty or routine for1n•al! _ty·. It i~ a \i;Jlu;:_b'. ~ provision to the advari. tage of the accused, and it•, br.

:: _,·, i,~ not pcrrnissiblc under the lrnv. But if the Judge, upon considering the record, including the cxarnination; if f'.! 1y, and the hc the right of appeal and the fornm 0f appeal arc concerned. Both these matters arc governed by s. 11 of the Act. • But even as it is, sub-s. ( 1) of s. 11 provides that while an appeal shall lie "as of right" from "any" judgment, sentence or "order" of. a (; Special Court, both 0111 facts and on law, it states, at lhe same time, that the appeal shall lie against that order which is not an interlocutory order. There is therefore no right ·of appeal against an in. terlocutory order of the Special Court. What then is an "interlocutory order" ? The expression has 1'! 0t been defined in the Act, or in the Code even though it has been used I in s. 397(2), and has teen the subject-matter of controversy both in this country and elsewhere. How uncertain is its meaning, will V. C. SHUKLA V. STATE (Shi11gha/. J.

) 437 appear from the following observation of Lord Denning M. R. in Salter Ret & Co. v. Ghosh('),- ''The question of "final'' or '"interlocutory'' is so uncertain that the only thing for practitioners to do is to lock up the practice books and sec what has been decided on the po;nt. Most on. lcrs have now been the subject of decision. If a ne\v ca~c should arise, \Ve must do the best \Ve can \Vith it. l:hcrL i-.. no other \vay. " l confess I am unable to do better. l shall therefore proceed tu sec what has been decided by this Court on the point. l shall start with the decision in Mohall Lul lvlugm1 La\ Thacker v. State of Guarnt, ('), which has been rendered by five Judges of this Conrt and cclates to a criminal case. There the Magistrate, afte1• enquiry under s. 476 of the Code of Criminal Procedure, 1898, ordered that the appellant may be prosecuted for offences under ss. 205, 467 and 468 read with s. 114 I. P. C.

On •appeal, the Additionai Sessions Judge held that the complaint was justified, but only in respect of the offence under s. 205/114 l. P. C. The High Court dismissed the appellant's revision petition, but granted certificate under a. rt. 134(1) (c) of the Constitution. The State urged in this Court that the High • Court's order dismissing the revision petition was not final as it did ' not determine th_e complaint filed by the Magistrate and did not decide the controversy whether the 'appellant had committed the offence. Tllc trial had in fact still to begin. Article 134(1) (e) as it stood at that time provided that an appeal shall lie to this Comt from. inter alia, any "final order" in a proceeding of the High Court if it certified that the case was a fit one for appeal. This Court referred to the decisions in S. Kuppuswami R. ao v. The King(·), M art and interlocutory as to part.

The meaning of the two words "final" and "interlocutory'' has, therefore, to be considered separately in relation to the particular purpose for which it is required. " It may be mentioned that in reaching that conclusion this Court clearly mentioned that the test applied in Salaman's case(') as to whether the order made upon an ·application was such that a decision in favour of either party would determine the ma. in dispute, was not followed even by Lord 1-lalsbury in Bozson v. Altrigcham Urban: District Council('). It was pointed out in that case that there was an earlier decision of the Court of Appeal in Shubrock v. Tufnell (supra) which was not cited in Sa/ama11's case although it appeared to be in conflict with it. That was why Halsbury L. C. preferred to follow the "earlier decision" and not the decision in Salanwn.

This Court obsetvcJ in Mohan Lal Magan Lal's case (supra) that a so-called interlocutory order, "though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. " Jn fact when! the matter came up for consideration again in Salter Rex & Co. v. Ghosh(') Lord Denning M. R. referred to Salaman's case (supra) and preferred to follow it only to the extent that the test whether an order was final or interlocutory was the "nature of the application ! Cl the Courts and not the nature of the order which the Court eventnally made". s>7 The aforesaid view taken by this Court in Mohan Lal Maga11 Lal (supra) is therefore significant, for it does not approve of the View taken in Salaman's case and lays down at least two clear propositions ' of law; (i) an orde.

r may be final for one purpose 8nd interlocutory for another, and (ii) it may be final as to part and interlocutory as to part, and that the meaning of the two words has to be determined in (1) [1891] I Q. B. 734. (2) [19031 I K. B. 547. (3) 9 Q. B. D. 621. (4) [1971] 2 Q. B. D. 597, V. C. SHUKLA V. STATE (Shingha/, J. ) relation to the particular purpose for which it is required to be given. As I shall show, both these propositions are significant in this case for • while an order framing the charge against the accused does not conclude his trial, it is "final" in the sense that his right to an order of .. discharge is refused to him once for all and he is put on trial. The above observations in Mohan Lal Magan Lal have been followed by this Court in Parmeshwari Devi v. State and another (supra) to which one of us was a party. There, during the course of the trial of a criminal case, the complainant made an application under s.

94 of the Code of Criminal Procedure, 1898, praying that Smt. Par- _... meshwari Devi, who was not a party to the case, may be directed to produce a document. The Magistrate made an order summoning her with the document. Smt. Parmeshwari Devi professed ignorance of the document, and stated that as she was &"pardanishin" lady she may not be summoned by the Court. The Magistrate thereupon passed art order directing _her to attend the court so that if she made a statement on oath that she was not in possession of the document, the court may get a chance to put her a few questions for satisfying itself regarding the whereabouts of the document. Sm!. Parmeshwari Devi applied for revision of that order to the Sessions Court and the High Court, but to no avail. When she obtained special leave for appeal to this Court, it was argued that the Magistrate's order was interlocutory and the .. power of revision conferred by s.

397(1) of the Code could not be • exercised in relation to it by virtue of sub-s. (2). It was held that an order "may be conclusive with reference to the stage at which it is made" and that such &n order could not be said to be an interlocutory order so as to bar a revision petition under s. 397(2). The stage at which the order . under challenge is made, is therefore significant for deciding its true nature. The next case which bears on the controversy is State of Kamata! ({I v. L. Muniswamy and others(') to which also one of us was a party. It was alleged in that case that accused Nos. 1 and 8 to 20 conspired to commit the murder of the complainant, and that in pursuance of that conspiracy accused Nos. 1, 8 and 10 hired accused No. 2 to ' execute the object of the conspiracy. Accused No. 2 in turn enraged . f the services of accused Nos. 3 to 7, and eventually accused Nos.

1 \ and 6 were alleged to have assaulted the complainant with kni 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 revi~ion 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 donbt amount to interlocutory orders against • which no revision would lie under s. 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 revisionai jurisdiction of 'the High Court.

" O It has to be appreciated that the order of the Sessions Judge on the revision petition of the complainant for "further enquiry". left no option to the Magistrate but to summon the accused anid proceed with their trial after framing a charge against them. but it was nevertheless held hy this Court as follows,- '·It is difficult to hold that the impugned order >ummoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under "-"'. sub-ss. (! ) and (2) of section 397 of 1973 Code ..... . We are, therefore, satisfied that the order impugned was 011e which was a matter of moment and which did involve a decision regarding the rights of the appellants. " The contrary order of the High Court refusing to entertain the revision petition on its interpretation of sub-s. (2) of s. 397 was set aside and it was asked to decide it on the merits. This view was taken even though it was appreciated that s.

397(2) had been incorporated in the Code "with the avowed purpose of cuttingi out delays. " This Court has therefore taken the view in Amar Nath's case. (supra) that the expression "interlocutory order" has been used in s. 397(2) of the Code in a restricted sense, that it "denotes" orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and that any \ order which substantially affects the rights of the accused is not an .. / 7-21SCl/80 [1980] 2 s. c. R. interlocutory order. On that reasoning, an order for the framing of a charge against the accused in this case cannot be said to be an interlocutory order. The matter again came up for consideration in Madlm Limaye v. The State of Maharashtra(') where one of us was a member of the Bench which heard the case, and one of the other two Judges was a party to the decision in Am~r Nath's case.

The case arose on a complaint by the Public Prosecutor in the Court of Session, after obtaining sanction under s. 199 (4) of the Code, as the alleged offence was under s. 500 I. P. C. for defaming a Minister. Process was issued against the accused. After the Chief Secretary had been examined to prove the sanction of the State Government, the accused filed an application for the dismissal of the complaint on the ground that the allegations were made in relation to what the Minister had done in his personal capacity and not as a Minister. The accused made two other contentions and challenged the legality and validity of the trial. The Sessions Judge rejected all the contentions and framed a charge under s. 500 I. P. C. The accused challenged that order by a revision petition to the High Court. A preliminary objection was raised there to the maintainability of the revision pet;tion with reference to the bar under sulJ.. s. (2) of s. 397 of the Code.

The High Court upheld the objection, and the matter came in appeal to this Court at the instance of the accused. The, question for consideration was whether the order of. the Sessions Judge framing the charge under s. 500 I. P. C. was interlocutory. Untwalia J. , who spoke for the Court, referred to the two points which arose for consideration in Amar Nath's case, to which reference .. ~ has already been made, and reaffirmed the decision on the second point that the impugned order of the Magistrate in that case was not an interlocutory order. He however thought it advisable to "enunciate and reiterate the view taken by the two learned judges of this Court in Amar Nath's case (supra) but in a somewhat modified and modulated form". Their Lordships considered S.

Kuppuswami Rao and Sa/aman'~ cases (supra) and examined the question whether the k:st that if the decision whichever way it was given, would, if it stood, finally disposed of the matter in dispute, was a proper test for deciding whether an order was interlocutory, and disapproved It. They went ) on to hold as follows,- "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 I (I) [1978] 1 S. C. R. 749. v. c. SHUKLA v. STATE (Shinghal, J. ) 443 the revisional power of the Sessions Court or the High Court A conferred on it by section 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 Chapter XXIX of the Code.

This does not seem to be the intentiiln of the Legislature when it retained the revisional power of the High Court B in terms identical to the one in the 1898 Code. " After referring to the rule of interpretation of statutes, their Lordships -1.. further stated that,- "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. 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 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 Kuppnswami's case (supra), but, yet it may not be au interlocu'. ory order-pure or simple. So. me 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