Reference And Revision

The term "interlocutory order" was explained in light of the Apex Court's verdict in Amarnath v. State of Haryana. The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad or artistic sense. An interlocutory order under Section 397 is one that does not decide or touch upon the important rights and liabilities of the parties. Any order that substantially affects the rights of the parties or decides certain rights of the parties cannot be considered an interlocutory order that bars a revision application to the High Court.

An order regarding the interim custody of a valuable article decides and touches upon very important rights of the parties. Any party who was denied even interim possession would be substantially and adversely affected by it and would be entitled to invoke the revisional jurisdiction of the High Court. This is because, by such an order, the High Court is affecting and adjudicating important rights of the parties concerning the particular aspect, and such an order cannot be said to be an interlocutory order as contemplated by Section 397(2) of the Code of Criminal Procedure.

If a practical view of Section 451 of the Code of Criminal Procedure is taken, considering the prevailing situation of arrears of cases, it cannot be said that an order of interim custody is purely interlocutory. Cases are pending for over a decade, and if, during inquiries or trials, an order for interim custody is passed against a person who is lawfully entitled to claim possession of such property, their rights can be vitally affected by orders passed against them.

Hence, in this view, it cannot be said that such an order is interlocutory or interim, operating during the pendency of the inquiry, investigation, or trial. Section 451 of the Criminal Procedure Code also empowers the Court to pass such orders as are otherwise expedient, including the sale of such property or orders for the protection of such property. After such an order, the property must follow in the hands of the purchaser, and consequently, it cannot be said to be an order that is not revisable.

The Supreme Court, in Madhu Limaye v. State of Maharashtra, considered the bar imposed under Section 397(2) of the Criminal Procedure Code regarding entertaining a revision against interlocutory orders and also the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure.

The Apex Court observed that "on a plain reading of Section 397, however, it would follow that nothing contained in the Code, including sub-section (2) of Section 397, shall be deemed to limit or affect the inherent powers of the High Court." The Apex Court further observed that "if we were to say that the said bar is not to operate in the exercise of inherent power at all, it would be setting at naught one of the limitations imposed upon the exercise of revisional power."

A practical solution to this issue would be to say that the bar provided in sub-section (2) of Section 397 operates only in the exercise of the revisional power of the High Court, meaning the High Court will have no power of revision concerning any interlocutory order. Then, in accordance with the principles enunciated above, the inherent power would come into play, as there would be no other provision in the Code for the redress of the grievance of the aggrieved party.

However, if the order assailed was purely interlocutory in nature, which could be corrected in the exercise of the revisional power of the High Court under the 1898 Code, the High Court would refuse to exercise its inherent power.

But, in cases where the impugned order clearly brings about a situation that is an abuse of the process of the Court or where interference by the High Court is absolutely necessary to secure the ends of justice, nothing in Section 397(2) of the Criminal Procedure Code can limit or affect the exercise of the inherent power by the High Court. However, such cases would be rare, and the High Court must exercise its inherent power very sparingly. One such case would be the desirability of quashing a criminal proceeding initiated illegally, vexatiously, or without jurisdiction.

From the above verdict of the Apex Court, the ratio seems to be that if under the old Code of Criminal Procedure, an order could be corrected in the exercise of revisional jurisdiction, it should be corrected in revision by the High Court. The High Court should not exercise its inherent power under Section 482 of the Criminal Procedure Code.

However, under the new Code, since a bar has been imposed on entertaining revisions against interlocutory orders, this bar will not apply in the exercise of the inherent power of the High Court under Section 482 of the Criminal Procedure Code. But for exercising such powers, the Apex Court has laid down guidelines, stating that such power should be exercised sparingly by the High Court, with examples provided.

End Notes:

1. State of Gujarat v. Manoj Kumar, 2001 Cri LJ 1223 at 1225 (Guj).
2. AIR 1978 SC 47: 1978 Cri LJ 165.