V. C. Shukla Vs. State Through C.B.I [1979] INSC 261 (7 December 1979)
1979 Latest Caselaw 261 SC

V. C. Shukla Vs. State Through C.B.I [1979] INSC 261 (7 December 1979)

FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA SHINGAL, P.N.

DESAI, D.A.

SEN, A.P. (J)

CITATION: 1980 AIR 962 1980 SCR (2) 380

CITATOR INFO :

R 1980 SC1382 (81,110) RF 1981 SC 723 (9) R 1988 SC 922 (24)

ACT:

Special Courts Act, 1979-Section 11(1) and 11(2)-Scope of-Order of Judge of Special Court directing a charge to be framed against the accused- Whether an interlocutor order- Appeal-If lies against that order- Interlocutory order-What is.

Non-obstante clause-Interpretation of.

HEADNOTE:

Section 11(1) of the Special Courts Act, 1979 provides that "notwithstanding 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 I.P.C. read with section 5(1)(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, particularly when 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 Ap 1(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 lt is used in section 397(2) of the Code. [433 G] (b) on a true construction of section 11(1) and taking into consideration the natural meaning of the expression interlocutory order there can be no doubt that the order framing charges against the appellant under the Act was merely n interlocutory order which neither terminated the proceeding nor finally decided the right of the parties.

Taking ib natural meaning and applying the 381 non-obstante clause the position is that the provisions of the Code of Criminal 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 the 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 the trial, namely inquiry, trial or any other proceeding. The object seems to be to cut down tho delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. Having regard 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 Code without disturbing or interfering with the fairness of the trial. [392 A-C] (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 that such an order could not be said to be purely an interlocutory order.

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

(f) 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 complete fairness of the trial because the bar contained in section 397(3) 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-F] G State of Karnataka v. L. Munniswamy & ors. [1977] 3 SCR 113; Parmeshwari 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 possible delay or means 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 Procedure Code gives a right of revision against an order which, though not purely interlocutory, is either intermediate or quasi-final, the Act 382 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 was put in section 11 to bar appeals against any interlocutory order whether it is intermediate or quasi-final. The Act applies only to a specified number of cases which fulfil the conditions contained in it and in view of its special features the liberty of the subject has been fully 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 appeal 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 trail 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 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. 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 deliberation.

[410 B-D]

5. (a) The non-obstante clause has the effect of overriding and excluding the provision of the Code. [411 D] Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr.

[1953] SCR 1, referred to.

(b) The term interlocutory is to be understood and taken to mean the converse of the term "final order". The essential attribute of an interlocutory order is that it merely decides some point or matter essential to the 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] Madhu Limaye v. The State of Maharashtra, [1978] 1 SCR 749 referred to.

(c) An order framing a charge being interlocutory falls squarely within the ordinary and natural meaning of the term "interlocutory order" as used in section 11(1) of the Act.

[414 F] Salaman v. Warner [1891] 1 QBD 734; Ex Parte Moore 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; Isaacs & Sons v. Salbstein & Anr. [1916] 2 KBD 139 Hunt v. Allied Bakeries Ltd. [1956] 3 All. E.R. 513;

Salter Rex & Co. v. Ghosh [1971] 2 Q.B.D. 597 referred to.

6. A conspectus of the decisions of this Court establishes the following propositions: (i) an order which does not determine the right of the parties but only one aspect of the 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 would be an interlocutory order. (iii) one of the tests generally accepted by Courts is to see if the order is decided one way it may terminate the proceedings but if decided the other way the proceedings would continue because the term interlocutory order in the Code of Criminal Procedure has been used in a much wider sense so as 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. [4241] 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 statute 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 interlocutory order. [432 G-H] Desai, J. 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 order finally disposes of the right of the parties. The 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 still 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 Fl 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 384 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 D] Kuppuswami Rao v. The King [1947] F.C.R. 180; Abdul Rahman 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 R [1971] 2 W.B.D. 597 referred to.

3. In the context of section 397(2) read with section 482 of the Code this Court, with a view to providing a judicial umbrella of active supervision tor reaching possible correctable injustice by activist attitudes and pragmatic interpretation found a third class of orders neither interlocutory nor final but intermediate and therefore outside the bar of section 397(2) of the Code of Criminal Procedure. But the test remained unaltered that every interlocutory order, merely because it disposes of an aspect in the course of a pending 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 from but the power of supervision sought to be constructed, was widened by ascertaining a third class of orders namely, intermediate orders which are neither interlocutory nor final. 1462 B-D] Amar Nath & Ors. v. Stole of Haryana & Ors. [1978] I S.C.R. 222; Mohan Lal Magan Lal Thacker v. State of Gujarat [1968] 2 S.C.R. 685; Madhu Limaye v. The State of Maharahtra [1978] 1 S.C.R. 749: Parmeshwari Devi v. State & Anr. [1977] 2 S.C R. 160 referred to.

4. (a) There is no force in the contention that framing of a charge concludes an enquiry anterior to it and that it is likely to result in the deprivation of the liberty of the accused because he is asked to face the trial. 1463 Cl (b) The framing of a charge is an intimation to the accused of what precise offence or what allegations of facts he is called upon to meet. Its object is to warn an accused of the case he is to answer. The order framing a charge would be an intermediate order and not an interlocutory order. In the course of a trial of a civil or criminal proceeding there can be no stage where an order can be made without bringing to bear on the subject an active judicial mind and judicially determining the dispute. Any such dispute if mechanically disposed of may warrant interference. Therefore emphasis was laid on the court expecting it to seriously apply its mind at the stage of framing a charge. It does not make tho order framing a charge anything other than an interlocutory order. [463 G; 464 F-G] B. N. Srikantiah & Ors. v. The State of Mysore [1959] S.C.R. 496 at 503; State of Karnataka v. L. Muni Swami & Ors. [1977] 3 S.C.R. 113 and Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra A.I.R. 1972 S.C. 545, referred to.

(c) If framing a charge is an interlocutory order, excluding the non-obstante clause, no appeal would lie against such an order under section 11 of the Act because there is a specific provision under section 11(2) that except as provided in section 11(1) no appeal or revision shall lie to any court from any judgment, sentence or order cf Special Court. [465 D-E] 385 (d) It is well settled that there is no inherent or common law right of A appeal in a subject and appeal is the creature of statute. Therefore the right to appeal can be enjoyed only within the strictly demarcated limits conferring such right of appeal. [465 E] In the instant case the order under challenge being one passed by tho Special Court set up under the Act an appeal from such an order would only be competent if it squarely falls within section 11(1). Therefore there is no gain- saying the fact that if the order sought to be appealed against is an interlocutory order excluding tho non-obstante clause by the main provision of section 11(1) the present appeal would be incompetent. [465 D]

5. The substantive provision of section 11 ( 1 ) while providing for an appeal against any judgment sentence or order made by a Special; Court circumscribed the right to appeal against the orders by excluding therefrom orders which are interlocutory. [466 D]

6. When the non-obstante clause provides for "not- withstanding anything in the Code" the expression as per grammatical construction would mean that something contained in the Code is to be excluded while examining the scope and content of the substantive provision of section 11(1). There is nothing in the Code providing for an appeal against an interlocutory order. While enacting the Act the Parliament was conscious of appeals and revisions under the Code and that is manifest from the language in section 11(2) of the Act. If there was no provision in the Code providing for an appeal against any interlocutory order in any proceeding under the Code it is inconceivable that such a wider jurisdiction of appeal was sought to be enacted under the substantive provision of section 11 (1), [467 B-Cl

7. The paramount object in enacting the Special Courts Act was to bring the prosecutions to a speedy termination and commission of offences should be judicially determined with the utmost dispatch. This being the objective of the Act construction of its provisions must receive such interpretation as would facilitate the achieving of the object underlying it and not frustrating it. That would stand thwarted if against every interlocutory order an appeal to the highest court as a matter of right both of law and fact can be filed. [467 E]

8. The argument that there is unfairness in the procedure is utterly unreal because the trial is by a sitting judge of the High Court to be appointed with the concurrence of the Chief Justice of India. The Special Court would always be amenable to the jurisdiction of this 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 thrown open for introduction of a procedure lacking in fairness and likely to result in the deprivation of personal liberty. [468 D] Singhal J. (dissenting).

1. The impugned order is not an interlocutory order.

The accused is entitled as of right to prefer an appeal.

[452 G] H

2. Section 9 of the Act provides that a Special Court could in the trial of cases falling within its jurisdiction follow the procedure prescribed by the Code 386 of Criminal Procedure for the trial of warrant cases before a Magistrate. Section 239 is a valuable provision 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 that an appeal against the order of the Special Court shall 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 shall 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 form of appeal are concerned.

[436 C & E]

4. lt is true that there is no right of appeal against an interlocutory order under section 11 of the Act. The clear propositions laid down by this Court on the meaning of the words "final" and "interlocutory" are (i) that an order may be "final" for one purpose and "interlocutory" for another and (ii) that an order may be final as to a part and interlocutory as to a part. The meaning of the two words has to be determined in relation to the particular purpose For which it is required to be given. [436 G; 438 G] Mohan Lal Magan Lal Thaker v. State of Gujarat, [1968] 2 SCR 685 referred to.

(iii) An order may also be conclusive with reference 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 a restricted sense. 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 substantively affects the rights 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 against the accused in this case cannot 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 interlocutory order within the meaning of section 397(2) of the Code. [444 A]

5. The revisional power of the Court concerned under section 397(1) of the Code will be rendered nugatory if the plea that an order framing or directing the framing of a. charge against an accused is an interlocutory order and is therefore beyond the reach of that sub-section by virtue of sub-section (2) is accepted. The nature of that order cannot be determined merely with reference to the eventuality that the accused may ultimately be acquitted on the completion of the trial. There is no reason why section 397 should be so narrowly 387 construed and why the real nature of the order framing the charge should be taken to be merely interlocutory order beyond the reach of the revisional power conferred on the Court concerned under section 397 when it cannot be denied that if the contention of the accused against the order framing the charge against him were allowed, that would, by itself, have concluded the proceeding against him. The object cf section 397(1) of the Code is to provide relief to the aggrieved party where it is deserved, only if the order complained of is not of an interlocutory nature. Section 11 of the Act is in that respect quite similar B: in purpose and content to section 397 of the Code and there is no reason why the same meaning and effect should not be given to it. [444 C-F] S. Kuppuswami Rao v. The King [1947] F.C.R. 180; Mohd. Amin Bros. v. Dominion of India [1949) F.C.R. held inapplicable.

6. The purpose of an appeal which is in the nature of a judicial examination of a decision by the higher court of a decision of an inferior court is to rectify any possible error in the order under appeal. In that sense the revisional jurisdiction is regarded as a part and parcel of the appellate jurisdiction. Statutes pertaining to a right of appeal should be liberally construed and any doubt regarding that right should be resolved in favour of the right. [445 H]

7. Section 11 of the Act gives a right of appeal against "any order" of a Special Court and not merely from its "final order". It is well settled that the Dr use of the words 'any order ' in Article 136, along with the other difference of language, had "greatly widened' the scope of Article 136 in regard to the appeal thereunder. Section 11 of the Act not only grants that remedy in the case of "any order" but allows it as a matter of right whereas the remedy under Article 136 is in terms discretionary. Section 11 takes care to state categorically that the appeal thereunder shall relate both to the facts and the law. lt is, therefore, a liberal and beneficial provision in favour of the aggrieved party and excels the Remedy under section 397 of the Code. [446 D; F-G]

8. The correct way of interpreting a provision of law with a non-obstante clause is to first ascertain what the enacting part of the section provides according to the natural and ordinary meaning and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in the relevant existing laws which is inconsistent with the new enactment. [447 B-C] Aswini Kumar and another v. Arabinda Bose and another [1953] S.C.R. 1.

9. The revisional power under the Code is discretionary and is not available to an aggrieved party as of right. The remedy by way of a revision petition has been hedged round with certain limitations and restrictions, whereas section 11 ensures a right of appeal "both on facts and on law '.

What section 11 does is to do away with the power of revision under the Code (sub-section 2) and to substitute for it an unlimited right of appeal against any judgment, sentence or order of she Special Court so long as the impugned order is not of an interlocutory nature. The aggrieved party has really lost nothing to which it would have been entitled under the Code for Section 397(2) also specifically states that the power of revision conferred by sub-section ( I ) shall not be exercise(l in relation to an interlocutory order. The net effect of the non-obstante clause. therefore. is to widen the remedy available under the Code. [447 H; 448 A-B]

10. While under the Code two correctional remedies are open to the aggrieved party-one by way of an appeal and other by way of petition for revision 388 which however is a remedy within the discretion of the High Court or the Sessions Judge-section 11 of the Act makes any and every judgment, sentence or order appealable so long as the order is not of an interlocutory nature. In respect of an interlocutory order, however, no remedy by way of appeal or revision is permissible under the Code and the position in that respect is not worse under section 11 of the Act.

The right of appeal under section 11 is, therefore, wider than the appellate and revisional remedies provided by the Code. [448 G-H] In the instant case the decision which the Judge took in making the impugned order clearly dealt with at least one important stage and aspect of the case against the accused finally and once for all. That order clearly put him to full course of trial and there is no reason why it should not be treated as "any order" against which he is entitled to appeal under section 11 of the Act and why it should be considered to be a merely interlocutory order. [450 B-C]

11. An order framing a charge affects a person's liberties substantially and it is the duty of the Court to consider judicially whether the material warrants the framing of the charge. [451 B]

12. The question whether an order is final or interlocutory is not to be determined merely from the character of the proceeding in which it is entered but from the character of the relief granted or refused [451 H]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 562 of 1979.

From the order dated 17-9-1979 of the Special Court at New Delhi in Criminal Case No. 1/79.

P. R. Mridul, and O. P. Sharma for the Appellant.

Soli J. Sorabjee, Solicitor General of India, R. N. Sachthey, Girish Chandra, Bipin Behari Lal and Miss Niklam Grover for the Respondent.

The Judgment of S. Murtaza Fazal Ali and A. P. Sen, JJ.

was delivered by Fazal Ali, J. D. A. Desai gave a separate opinion and P. N. Shinghal, J. gave a dissenting opinion.

FAZAL ALI, J.-This appeal is directed against an order dated 17th September 1979 passed by Justice Joshi, Special Judge appointed under the Special Courts Act, 1979 (No. 22 of 1979) (hereinafter to be referred as the 'Act') by which the learned Judge directed a charge to be framed against the appellant under s. 120B of the Indian Penal Code read with s. 5 ( 1 ) (d) and s. 5 (2) of the Prevention of the Corruption Act, 1947 and also under s. 5(2) read with s.

5(1)(d) of the said Act. This appeal has been filed by the appellant under section 11(1) of the Act. The appeal was placed for preliminary hearinbefore a Division Bench of this Court where Mr. Soli Sorabjee, the Solicitor General of India, put in appearance on behalf of the respon- 389 dent and raised a preliminary objection to the maintainability of the appeal. The preliminary objection raised by the Solicitor General was mainly on the ground that the order impugned being a purely interlocutory order within the meaning of s. 11(1) of the Act; no appeal lay to this Court. The Division Bench in view of the nature of the substantial question of law involved referred the case to a larger Bench even at the stage of preliminary hearing because if the. appeal was admitted for hearing, it would impliedly involve a decision on the question raised by the Solicitor General by way of a preliminary objection.

We have heard the counsel for parties at very great length on the various aspects of the respective points of view put forward by the counsel for the parties. It is manifest that if the preliminary objection raised by the respondent finds favour then the appeal has to be dismissed in limine as being not maintainable. If, however, the preliminary objection is overruled and the contention of the appellant is accepted, the appeal will have to be admitted to hearing. In view of the limited nature of the scope of the appeal we find it wholly unnecessary to go into the facts, circumstances or the evidence on a consideration of which the Special Judge has based his order because that can be done only if the appeal is to be heard on merits.' The sheet-anchor of the argument of Mr. Mridul, counsel for the appellant, appears to be that the Special Courts Act being a statute in pari materia, the Criminal Procedure Code, the expressions used and the meaning of the words employed in the Act must have the same meaning and signification as used in the various provisions of the Criminal Procedure Code of 1973 (hereinafter to be referred to as the 'Code'). It was submitted in the first instance that on a prop r construction of s. 11 of the Act, the word 'interlocutory order' has been used exactly in the same sense as the same word has been used in S. 397(2) of the Code. The argument merits serious consideration and has various phases and facets to be gone into after a proper examination of the scheme and object of the Code and the Act. To begin with, it would appear that the Code has made revolutionary changes in the Criminal Procedure Code of 1898 and has inserted additional pro- visions with a view to ensure speedy justice without impeding fairness of the trial. In this connection, the relevant portions of the Statement of objects and Reasons of the Code may be extracted:- "The amendments of 1955 were extensive and were intended to simplify procedures and speed up trials as far as possible. In addition, local amendments were made by State Legislature, of which the most important were those 390 made to bring about separation of the Judiciary from the Executive. Apart from these amendments, the provisions of the Code of 1898 have remained practically unchanged through these decades and no attempt was made to have a comprehensive revision of this old Code till the Central Law Commission was set up in 1955.

........ The main task of the Commission was to suggest measures to remove anomalies and ambiguities brought to light by conflicting decisions of the High Courts or other wise, to consider local variations with a view to securing and maintaining uniformity, to consolidate laws wherever possible and to suggest improvements where necessary. Suggestions for improvements received from various sources were considered by the Commission.

........................

3. The recommendations of the Commission were examined carefully by 'he Government, keeping in view, among others, the following basic considerations:- (i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;

(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and (iii) The procedure should not be complicated and should, to the utmost extent possible, ensure fair-deal to the poorer sections of the community.

The occasion has been availed of to consider and adopt where appropriate suggestions received from other quarters based on practical experience of investigation and the working to criminal courts.

............

In addition to ensuring fair deal to the accused, separation as provided for in the Bill would ensure improvement in the quality and speed of disposal, as all Judicial Magistrates would be legally qualified and trained persons working under close supervision of the High Court.

5. Some of the more important changes proposed to be made with a view to speeding up the disposal of criminal cases are:- 391 (a) the preliminary inquiry which precedes the trial by a Court of Session, otherwise known as committal proceedings, is being abolished as it does not serve any useful purpose and has been the cause of consider able delay in the trial of offences;

..........." (d) the powers of revision against interlocutory orders are being taken away as it has been found to be one to the main contributing factors in the delay of disposal of criminal cases;

.............." A perusal of the objects and Reasons clearly shows that the Parliament wanted to implement the recommendation of the Law Commission as far as possible. In the instant case, we are mainly concerned with two important changes which have been made in the Code. Tn the first place, as para S of the objects and Reasons shows that The preliminary inquiry which preceded the trial by a court of sessions was known as committal proceedings has been abolished and the Magistrate before when the chargesheet is submitted has merely to find out whether the offence is exclusively triable by a session court and, if so, to send the case to the sessions court.

This was obviously done to cut down considerable delay and duplication in the trial OF serious 1 criminal offences. We have laid special stress on this part of the amendment because a serious argument was built up by the learned counsel for the appellant on the question as to when the trial in a warrant chase starts. We shall deal with this aspect of the matter a little later. Secondly, para 5(d) of the objects and Reasons emphasises the fact that powers of revision against interlocutory orders have been taken away as they were found to be the main contributing factor in the delay of the disposal of criminal cases. It may be mentioned here that in the Codes of Criminal Procedure, prior to the Code of 1973, the word 'interlocutory order' was not used at all and, therefore, if has to be interpreted for the first time only after the Code came into force. Section 397(2) of the Code which contains the powers of revision against interlocutory orders runs thus:

"(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." 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, 392 inquiry, trial or any other proceeding. The object seems to be to cutdown 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 Code of Criminal Procedure or which are statutes in pari material the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to the 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 a few decisions which have interpreted the expression 'interlocutory order' as appearing in s. 397(2) of the Code. Before we come to the decisions, certain features may be noticed here. In the first place, the concept of appeal against interlocutory order seems to be by and large foreign to the scheme of the Code or for that matter the scheme of the b Code of Criminal Procedure right from 1872 uptodate. Appeal has been provided only against final orders and not against interlocutory orders. Instead of appeal, the Code of 1898 as also the Code of 1872 contained powers of revision which vested in the High Court to revise any order passed by a criminal court.

In the previous Codes, the term 'interlocutory' was not used. Therefore, the revisional jurisdiction was wide enough to embrace within its scope any order whether interlocutory.

intermediate or final. Secondly, by virtue of scores of decisions of the various High Courts in India and the Privy Council, it was well settled that the revisional jurisdiction possessed by the Sessions Judge and the High Court could be exercised only to example the legality or propriety of the order impugned and more particularly the Courts; were to interfere only if there was an error of law or procedure. Previous to the Code, the powers of revision enjoyed by the Sessions Judge or the District Magistrate for the Chief Judicial Magistrate through various amendments were rather limited whereas the power of High Court was wide and unlimited. Apart from the revisional power the High Court under the Code of 1898 possessed an inherent power to pass order ex debito justitiae in order to prevent abuse of the process of the court. This was a special power which was to be exercised by the High Court to meet a particular contingency not expressly 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 or affect the inherent powers of the High Court to make such 393 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 to secure the ends of justice." One of the questions that arose was as to whether an interlocutory 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. 3.97(3) 1 permitted the power o, revision to be exercised only by the High Court or the Sessions Judge but not by both of them. The limitation contained in s. 397(3) runs as follows:- "(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." Sub-section (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 revisional 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 to consider the interpretation of S. 397(3) of the Code, although in one of the cases cited before us this aspect has been gone into and that is why we have indicated 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. 11 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 & Ors. v. State of Haryana & Ors.(1) and particularly to the following observations made 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 merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the 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 to the High Court against that order, because that would be against the very object which formed the basis for insertion 394 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 not doubt 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-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 not an interlocutory order but being a matter of moment it decided an important aspect of the trial and was, therefore, in a sense a final 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 be read in the light of the peculiar facts of the said case.

What had happened in that case was that an FIR was lodged at police station Butana, District Karnal, mentioning a number of accused persons as having participated in the occurrence.

The police, after holding investigations, submitted a chargesheet against the other 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. Th, 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 after having examined the complaint found that no case against the appellant was established. A further revision was taken up before the Sessions Judge who accepted the revision and directed further inquiry, on receipt of which the Magistrate issued summons to the appellants straightaway. 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 had been that before the stage of trial of the case reached the appellants 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 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 order 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 amounted to asking the accused to face the trial. It was in the 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. In fact this part of the decision was endorsed by a later decision of this Court in the case of Madhu Limaye v. The State of Maharashtra The Court observed thus- "In Amar Nath's case, as in this, the order of the Trial Court issuing process against the accused was challenged and the High Court was asked to quash the criminal proceeding either in exercise of its inherent power under section 482 of the 1973 Code corresponding to section 561A of the Code of Criminal Procedure, 3898-herein after called the 1898 Code or the old Code, or under Section 397(1) of the new Code corresponding to section 435 of the old Code. Two points were decided in Amar Nath's case in the following terms:- (1) "While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-s. (2) of s. 397 of the 1973 Code the inherent powers contained in s. 482 would not be available to defeat the bar contained in s. 397(2)." (2) The impugned order of the Magistrate, however was not an interlocutory order.

............ But we are going to reaffirm the decision of the Court on the second point." G A Division Bench consisting of three Judges held that an order framing a charge was not an interlocutory order and, therefore, a revision against such an order was competent before the Sessions Judge or the High Court. In dwelling on the various shades and aspects of an interlocutory order, Untwalia J. who spoke for the Court, referred to previous decisions of the Court regarding the scope and 396 ambit of a final order in order to highlight the nature and signification of the term 'interlocutory order'. Before analysing the decision, it may be necessary to state the facts on the basis of which the aforesaid decision was rendered. The prosecution case was that in a press conference held at New Delhi on September '7, 1974, the appellant before the Supreme Court is said to have made certain statements and handed over a press hand-out containing allegedly some defamatory statements regarding Shri A. R. Antulay, the then Law Minister of the Government of Maharashtra. The State Government decided to prosecute the appellant for an offence under s. 500 of the Indian Penal Code after obtaining the necessary sanction under s.

199(4) (a) of the Code. Armed with the sanction, the Public Prosecutor filed a complaint in the court of the Sessions Judge, Greater Bombay. The Sessions Judge took cognizance of the complaint and issued process against the appellant. At the time when the appellant was being heard in the Sessions Court, the allegation against him was resisted on three grounds- (1) that the court of Sessions had no jurisdiction to take cognizance of the offence without a formal commitment of the case to it;

(2) that the sanction given was bad inasmuch as it was not given by the appointing authority; and (3) that the sanctioning authority had not applied i s E; mind to the facts of the case and accorded sanction in a casual manner.

The Sessions Judge rejected all these contentions and framed charges against the appellant under s. 500, I.P.C.

Thereafter, the appellant moved the High Court in revision against the order framing the charges. Before the High Court, a preliminary objection as to the maintainability of the revision application was taken. Before proceeding further, it may be observed that the objections taken by the appellant in the aforesaid case related to the root of the jurisdiction of the Sessions Judge and if accepted, would have rendered the entire proceedings void ab initio. The case before this Court was not one based on allegations of fact on which cognizance was taken by a trial court and after-having found that a prima facie case was made out a charge was framed against the accused. Even so, the ratio decidendi in the aforesaid case was, in our opinion absolutely correct and we are entirely in agreement with the learned Judges constituting the Bench that the order of the Sessions Judge framing charges, in the circumstances of the case, was not merely an interlocutory order but partook of the nature of a final order or, at any rate, an intermediate order so as to be taken out of the bar contained in s.

397(2) of the 397 Code In that case, Untwalia J., speaking for the Court observed as follows:- "It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion, if this strict test were to be applied in interpreting the words 'interlocutory order' occurring in section 397(2), then the order taking cognizance of all offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one....... But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(10) ..........................

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 all order passed during the course of a Proceeding which may not he final in the sense noticed in Kuppuswami's case (Supra), but, yet it may not be an interlocutory order- pure or simple. Some kinds of orders may fall in between the two. By a rule of harmonious construction, we think that the bar in subsection (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 131 of the Constitution, yet it would not be correct to characterise the as merely interlocutory orders within the meaning of section 397 (2).

xxx xxx xxx Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that all order rejecting, the plea of the accused on a point which when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of section 397(2)." (Emphasis ours) 398 Reading the observations made by this Court in the aforesaid case as a whole we are unable to agree with the argument of Mr. Mridul that this Court in any way disapproved the tests of a final order or interlocutory order accepted by the Federal Court in case of S. Kuppu swami Rao v. The King This Court took care to explain that in a situation with which the Judges were dealing in that particular case, it would 'not be proper to treat the order framing charges as an interlocutory order pure and simple.

Even thought the order may be intermediate it could not be said to be final so as to bar the revisional jurisdiction of the High Court under s. 397(3) of the Code. We find ourselves in complete agreement with the exposition of the law by the learned Judges who decided the said case. We will deal 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 reiterate here 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 complete fairness of the trial because the bar contained in s. 397(3) 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, 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 power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. The same, however, 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 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:

"On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D. D. Ghadigaonkar and Century Spinning, & Manufacturing Co. v. State of Maharashtra a 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 no. there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge 399 affects a person's liberty substantially and therefore it is the . A duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial." Great stress was laid by the learned counsel for the appellant on the fact that the Court had observed that the stage of framing of charges was a very important matter because it affected a person's liberty substantially and, therefore, the Court should consider judicially whether the materials warrant framing of the charge. There can be absolutely 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 an interlocutory order. In the aforesaid case, this Court was called upon to exercise its jurisdiction under s. 482 of the Code, that is to say, the inherent powers of the Court was invoked to quash the proceedings in order to prevent abuse of the process of the Court. The term 'interlocutory order' 7 appearing in s. 397 (2) of the Code did not arise for interpretation in that case. In these circumstances, therefore, we do not think that this case can be of any assistance to the appellant. Reference was also made to a decision of this Court in the case of Parmeshwari Devi v. State & Anr. This case also depends on different facts and relates to the circumstances under which a summons could be issued under s. 94(1) of the Code of 1898. In passing, however, this Court observed:- "The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does 'not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights." 400 Although this Court said that the Code does not define an interlocutory order, it does not include an intermediate order made during the preliminary stages, of an inquiry or trial. This Court laid greater stress on the fact that an order which was directed against a person who was not a party to the inquiry or trial and had, therefore, no opportunity to place his point of view could not be bound by any order passed against him. This appears to be the ratio of that case. Reliance was also placed on a decision of this Court in the case of Century Spinning & Manufacturing Co. Ltd. v. The State of Maharashtra in order to urge that the stag, of framing of charges is a matter of moment and an order framing a charge could not be termed as an interlocutory order. In the first place, the judgment of the aforesaid case was rendered before the Code of 1973 was passed and, therefore, the interpretation of interlocutory order as contained in s. 397 (2) of the Code could not have arisen for consideration. Secondly, the decision was given on the scope and ambit of s. 251A of the Code of 1898 AS amended by the Act of 1958. Dealing with the scope of sub- sections (2) and (3) of s. 251A of the Code of 1898, this Court observed as follows:(1) "The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the of offence by the accused is not supportable either on the, plain language of the section or on its judicial interpretation or on any other recognised principal of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case.

The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution." There can be no doubt that the stage of framing of the charges is all important stage and the Court before framing the charge has to apply its mind judicially to the evidence or the material placed before it in order to make up its mind whether there are sufficient grounds for proceeding against the accused. But this case is not an authority for the proposition that once the Court, after considering the materials, 401 passes an order framing the charges, the order is a final order which could be revised and would not be barred under s. 397 (2) of the Code which, however, did not exist at the time when the decision was given. It follows Therefore that an order framing a charge was clearly revisable by the High Court under ss. 435 and 439 of the Code of 1898. We may, however, point out that we are in complete agreement with the principle involved in the cases discussed above that an order framing charges against an accused undoubtedly decides an important aspect of the trial and it is the duty of the Court to apply its judicial mind to the materials and come to a clear conclusion that a prima facie case has been made out on the basis of which it would be justified in framing charges The question, however, with which we are concerned in the present appeal is essentially different. The order of the Special Judge framing the charge is a reasoned order and not a mechanical or a casual order so as to vitiate the order of the Special Judge. In the instant case, we are concerned with a much larger question, viz. whether or not the term 'interlocutory order' used in s. 11(1) of the Act should be given the same meaning as this very term appearing in s. 397 (2) of the Code. In other words, the question is whether s. 11 (1) of the Act tightens or widens the scope of the term 'interlocutory order' as contained in s. 397 (2) of the Code and as interpreted by this Court in the decisions, referred to above.

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 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 . (1) 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- 402 fied 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 and 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 non obstante clause does not change the complexion of the term 'interlocutory order' which is a term of well known 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 inter mediate or a quasi final order. It was further argued that as an order framing charges against the accused affects the liberty of the 1) 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