The Supreme Court in Criminal Appeal No. 472/2021 titled Sanjay Kumar Rai Vs State of Utter Pardesh & Anr., held that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are, therefore, not affected by the bar of Section 397 (2) of the Code of Criminal Procedure.

What is bar placed in Section 397 in the Code Of Criminal Procedure, 1973

397. Calling for records to exercise 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.
   
   Explanation: All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
   
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 same person shall be entertained by the other of them.

Legal Position
The Code of Criminal Procedure, 1973 does define an interlocutory order, but is an interim order, made during the preliminary stages of an enquiry or trial. However, in [Amar Nath Vs State of Haryana, 1977 SCC (Cri.) 585] the Supreme Court of India observed that;
The term interlocutory order in Section 397 (2) of the Code of Criminal Procedure, 1973 merely denotes orders of a purely interim or temporary nature which does not decide or touches the important rights of the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision.

Orders which are matters of moments 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.

In [Madhu Limaye Vs State of Maharashtra, (1977) 4 SCC 551], the Supreme Court of India further observed 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, but, yet it may not be an interlocutory order pure or simple. Some kinds of order may fall in between the two.

The bar in sub-section (2) of Section 397 of Code of Criminal Procedure, 1973 is not meant to be attracted to such kinds of interlocutory orders. They may not be final orders for the purposes, yet it would not be correct to characterize them as merely interlocutory orders within the meaning of Section 397 (2) of the Code of Criminal Procedure, 1973.

In [V. C. Shukla Vs State through CBI, 1980 (2) SCR 380], Supreme Court held that the term "interlocutory order" used in the Code of Criminal Procedure, 1973 has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final.

Not single general test for finality or a judgment or an order has so far been laid down. The reason probably is that a judgment or order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to part. However, generally speaking, a judgment or order which determines the principle matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application of reverse liberty to apply.

Very recently the Supreme Court in Criminal Appeal No. 472/2021 titled [Sanjay Kumar Rai Vs State of Utter Pardesh & Anr.], dfecided on 07.05.2021] held that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are, therefore, not affected by the bar of Section 397 (2) of the Code of Criminal Procedure.

By way of background, the appellant, a partner at a gas agency, was accused of threatening a journalist at The Pioneer newspaper. The journalist filed an application before the concerned Chief Judicial Magistrate (CJM) under Section 156 (2) Cr. P. C for conducting investigation into the allegations. The Magistrate accordingly directed investigation and ordered the local police to submit the report.

In July 2012, a charge-sheet came to be filed against the appellant/accused under Sections 504 & 506 Indian Panel Code, 1860 based on the statement of complainant and the affidavits of two witnesses. However, the Investigating Officer did not deem it necessary to take the version of the appellant on record or consider his side of story also.

The Chief Judicial Magistrate took cognizance of the matter in November 2012. However, well before framing of the charges the appellant sought his discharge under Section 239 Cr. P. C contending that the complainant falsely implicated him and the allegation of telephonic threats does not constitute an offence under Sections 504 & 506 of Indian Panel Code, 1860.
It was further submitted that the investigation was not fair and was unilateral in its approach, wherein, the Investigating Officer had made no efforts to find out the truth and had instead relied on the statement of the complainant and other planted witnesses to fasten a case against the appellant.

The Chief Judicial Magistrate did not agree with the appellant’s plea and rejected his discharge application. Aggrieved, the appellant approached the High Court through a Criminal Revision Petition, seeking reversal of CJM’s Order. The High Court while placing reliance on [Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs Central Bureau of Investigation, (2018) 16 SCC 299] observed that interference in the order framing charges or refusing to discharge is called for in rarest of rare case only to correct the patent error of jurisdiction. Finding no such jurisdictional error in CJM’s Order the Criminal Revision was dismissed.

In Criminal Appeal, the Bench comprising CJI N. V. Ramana, Surya Kant & Aniruddha Bose while allowing appeal against the Order passed by Allahabad High Court dismissing a Criminal Revision Petition against a Trial Court Order dismissing discharge application observed that the High Court committed jurisdictional error by not entertaining the revision petition on merits and overlooked the fact that 'discharge' is a valuable right provided to the accused.

On Asian Resurfacing Judgment, the Court said:
13... It appears to us that while limiting the scope of a criminal revision to jurisdictional errors alone, the High Court apparently under­appreciated the Judgment in Asian Resurfacing (supra). We say so at least for two reasons. First, 9 the material facts in the above-­cited case dealt with a challenge to the charges framed under the Prevention of Corruption Act, 1988 ("POCA"). The cited judgment itself enlightens that not only is POCA a special legislation, but also contains a specific bar under Section 19 against routine exercise of revisional jurisdiction. Second, This Court in Asian Resurfacing (Supra) while expressing concern regarding the need to tackle rampant pendency and delays in our criminal law system, followed the ratio laid down in an earlier decision in [Madhu Limaye Vs State of Maharashtra, (1977) 4 SCC 551

Orders framing charges or refusing discharge are neither interlocutory nor final in nature. The Bench added that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases.

Referring to [Madhu Limaye (supra), the Bench observed:
15...The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of Cr. P. C. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore-­stated jurisdiction ought to be circumspect.

The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.

Trial Court while considering the discharge application is not to act as a mere Post Office. The Court added that the Trial Court while considering the discharge application is not to act as a mere Post Office.

"16... The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The Court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India V Prafulla Kumar Samal, (1979) 3 SCC 4]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.

Taking note of the facts of the case, the Bench proceeded to set aside the High Court order and remanded the case back for its reconsideration in accordance with law.

Conclusion
The interlocutory orders visualized under Section 397 (2) Cr. P. C are predominantly in the realm of procedure without touching or affecting the rights of the parties. The criminal consideration is, whether the order requires a seat of finality having an impact upon the rights and privileges of the parties. The order though being an interim or short-lived is passed to tide over a temporary impass pending final adjudication cannot be categorized or labeled as interlocutory order.

An order which terminates a proceeding will be obviously not an interlocutory order, in as much as it is a final one. However, the reverse of this proposition is not always true. In other words, in a situation an order which is not final, can also be a non-interlocutory order within the meaning of Section 397 (2) Cr. P. C. For example, an order may reject the plea of the accused on a point which when accepted will conclude the particular proceeding. In such a case, if the order goes in favour of the accused, it terminates the proceeding and as such it will not be an interlocutory order. However, where the order goes against the accused, it will not terminate the proceedings yet it will remain non-interlocutory and not attract the bar under Section 397 (2) Cr. P. C.

However, in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section (2) Cr. P. C can limit or affect the exercise of the inherent power by the High Court. The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice.

It is now well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397 (2) of the Code of Criminal Procedure, 1973, the sole test is not whether such order was passed during the interim stage. {Vide [Amar Nath Vs State of Haryana, 1977 SCC (Cri.) 585]; [Madhu Limaye Vs State of Maharashtra, (1977) 4 SCC 551]; [V. C. Shukla Vs State through CBI, 1980 (2) SCR 380]; [Rajinder Kumar Sitaram Pande Vs Uttam, (1999 3 SCC 134] and[Sanjay Kumar Rai Vs State of Utter Pardesh & Anr.], decided on 07.05.2021]}. The feasible test is whether by upholding the objections raised by a party, would it result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397 (2) of the Code of Criminal Procedure, 1973.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K, Jammu.
Email: [email protected]; [email protected]