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Ankaputtaswamy and ors. Vs. Papegowda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1978CriLJ1233
AppellantAnkaputtaswamy and ors.
RespondentPapegowda and ors.
Excerpt:
.....impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. 205, 296, 308 and 311 of 1975, the petitioners are questioning the validity of the orders of the concerned sub-divisional magistrates calling upon them (the petitioners) to show cause as to why they should not be ordered to execute bonds for keeping peace, good behaviour etc......the competency of these revision petitions under section 397 of the code on the ground that the impugned orders were only interlocutory orders and as such section 397 (2) of the code was a bar for approaching this court in revision. several decisions were cited at the bar by either side before the learned single judge in support of their respective contentions.4. in giriyappagouda v. basavarajappa 1975 (1) kant lj 434 this court took the view that an order by a magistrate in a pending criminal proceeding rejecting the application of the accused filed under section 432 of the old code for making reference to the high court on a point of law or an order in a criminal case taking cognisance and issuing summons to the accused are in the nature of interlocutory orders, and therefore such.....
Judgment:

N.D. Venkatesh, J.

1. Since an important question of law is involved in these petitions, the same have been referred to the Division Bench by Nesargi, J. The question of law involved is whether the impugned orders are 'interlocutory orders' as contemplated under Section 397 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) and therefore the revisions in question are barred?

2. The facts that gave rise to these petitions briefly stated are these:

These petitions have been filed under Section 397 (1) of the Code.

Cr. R.P. No. 205 of 1975 has been filed by the respondents in Cr. Mis. No. 24 of 1974-75 on the file of the Sr. Divisional Magistrate, Pandavapura, against the order of that Court made under Section 112 of the Code; Cr. R.P. 296 of 1975 has been filed by some of the respondents in No. CR/MAG/40/74-75 on the file of the Sub-Divisional Magistrate Kopala, Raichur District, against the order of that Court taking steps against them under Section 107 of the Code; Cr. R.P. 308 of 1975 has been filed by the respondents in Case No. Cr. P.C. 275. R-5 on the file of the Sub-Divisional Magistrate, Hospet, against the order of that Court for proceeding against them under Section 111 of the Code; Cr. R.P. No. 311 of 1975 has been filed by the respondents in C. M. C. No. 900 of 1975 on the file of the Sub-Divisional Magistrate, Chikballapur, questioning the correctness of the order made by that Court under Section 107 read with Section 111 of the Code; and Cr. R.P. No. 202 1975 has been filed by the first member of the second party in MAG/CA/32/74-75 on the file of the Sub-Divisional Magistrate, Madhugiri, against the order of that Court attaching petition schedule immoveable properties under Section 146 (2) of the Code.

3. During the hearing of these petitions a preliminary objection was raised about the competency of these revision petitions under Section 397 of the Code on the ground that the impugned orders were only interlocutory orders and as such Section 397 (2) of the Code was a bar for approaching this Court in revision. Several decisions were cited at the Bar by either side before the learned single Judge in support of their respective contentions.

4. In Giriyappagouda v. Basavarajappa 1975 (1) Kant LJ 434 this Court took the view that an order by a Magistrate in a pending criminal proceeding rejecting the application of the accused filed under Section 432 of the old Code for making reference to the High Court on a point of law or an order in a criminal case taking cognisance and issuing summons to the accused are in the nature of interlocutory orders, and therefore such orders cannot be challenged in revision in view of Section 397 (2) of the Code.

5. In K. Mariyappagouda v. State of Karnataka Cri. R.P. No. 101 of 1975, the Court held that an order passed by the Sub-Divisional Magistrate under S. Ill of the Code directing the petitioners to show cause as to why they should not be ordered to execute a bond to keep peace was an interlocutory order, and a revision was barred under the above provision.

6. But in Anandarao v. State of Karnataka Cri. R.P. No. 663 of 1974, Madasetty v. State of Karnataka Cri. R.P. No. 664 of 1974 and K. Siddalingappa Setty v. State of Karnataka Cri. R.P. No. 70 of 1975 though the orders in question had been passed by the Sub-Divisional Magistrates under Section 107 read with Section 111 of the Code, the question of maintainability of those petitions on the ground that they were barred under Section 397 (2) of the Code was not raised, and therefore the said petitions were dealt with on merits.

7. The questions that are required to be determined are:

(i) Whether notices issued by the Magistrates in security proceedings under Chap. VIII of the Code calling upon the persons concerned to show cause as to why they should not be ordered to execute bonds to keep peace, good behaviour etc., and,

(ii) orders made under Section 145 (1) of the Code with a view to take further proceedings under that Section and Section 146;

are interlocutory orders as contemplated under Section 397 (2) of the Code and as such cannot be challenged in revision ?

8. Section 397 of the Code reads as follows:

397 (1). The High Court or any Sessions Judge may call for and examine the record of any proceedings 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 (i) 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:

The term 'interlocutory order' is not denned in the Code. It has to be understood in the context in which it is used and also keeping in view the broad scheme of the Code. Several changes have been introduced by the Parliament in the New Code with the main object of cutting out delays and at the same time ensuring a fair trial. A fair trial in so far as the accused is concerned means the providing of a full opportunity to him to defend himself. Depending on cases this may mean his right to question (i) the very jurisdiction of the Court to try him; (ii) the correctness of the procedure followed; and (iii) the initial decision of the Court calling upon him to face the trial or enquiry etc. The answers to each of the above questions in one way or the other substantially affects his rights. Any decision of the appellate Courts that a Court which proposes to try the accused had no jurisdiction to do so, or that the issue of summons or warrant calling upon the accused to appear before the Court to face the trial or enquiry was bad for want of a prima facie case against him, or an order calling upon the accused to show cause as to why he should not execute a bond to keep peace or initiating action under Section 145 and Section 146 of the Code, were bad for having been dealt with in a mechanical manner and without complying with the procedure involved, would rid the accused of the botheration of further participating in the trial. Such orders of trial Courts though of an interim nature, do substantially affect the rights of the accused.

9. Recently the Supreme Court had an occasion to consider the ambit and scope of Section 397 (2) of the Code. In Amarnath v. State of Haryana : 1977CriLJ1891 the question involved was as to whether the accused in a criminal trial was barred under Section 397 (2) of the Code from questioning an order of the trial Court issuing summons to him on the ground that it had done so without applying its mind and in a mechanical manner. The Supreme Court has taken the view that the accused has such a right and that Section 397 (2) was no bar. Their Lordships have observed as follows at paras. (6) and (10) of the judgment:

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

The Magistrate on receiving the order of the Sessions Judge summoned the appellants straightway which meant that the appellants were to be put on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This, was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or any right of their's was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightway was merely an interlocutory order which could not be revised by the High Court under Sub-sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate in passing an order prima facie in sheer mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial.

It is clear from the above observations that any order which substantially affects the rights of the accused cannot be said to be an interlocutory order so as to bar a revision. Such an order decides a serious question as to the rights of the accused to have a proper trial.

10. While affirming the above view, the Supreme Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 has observed as follows (at pp. 169-170):

Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. But 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 (1). On such a strict interpretation, only these orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chap. XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code.

Although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. 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 that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order' ....The impugned order in the instant case rejecting the application challenging the jurisdiction of the Court to proceed with trial, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of Sub-section (2) of Section 397. It must be taken to be an order of the type falling in the middle course.... An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397 (2).

11. In the above case the facts involved were that the accused who was being prosecuted before the Sessions Judge for an offence under Section 500, I.P.C., on the allegation that he had defamed a Minister, had taken the plea that for the reasons stated by him in his application the Court had no jurisdiction to entertain the complaint. The Sessions Judge had rejected those contentions. The accused thereafter came up in revision before the High Court of Bombay which felt that the impugned order of the Sessions Judge was an 'interlocutory order' and therefore the revision was barred. The Supreme Court, on appeal, took a contrary view and held that the order under appeal was not one to which the bar under Section 397 (2) applies. In its view whether it was a final order or not, certainly it was not an interlocutory order within the meaning of Section 397 (2) of the Code, and held that the bar under the said section will not operate to prevent the abuse of the process of the Court or will come in the way of securing the ends of justice.

12. Let us examine the impugned orders in the light of the above principle.

13. In Cr. R.P. Nos. 205, 296, 308 and 311 of 1975, the petitioners are questioning the validity of the orders of the concerned Sub-Divisional Magistrates calling upon them (the petitioners) to show cause as to why they should not be ordered to execute bonds for keeping peace, good behaviour etc.

14. In Cr. R.P. No. 202 of 1975 the validity of the order of the Sub-Divisional Magistrate attaching the immovable property concerned in that case under Section 145 of the Code is being questioned.

15. The petitioners allege that these orders have been passed by the concerned Sub-Divisional Magistrates in a mechanical manner and without applying their mind.

16. In view of what is stated above, in our opinion, the impugned orders are not interlocutory orders within the meaning of Section 397 (2) of the Code. Hence, overruling the preliminary objection re : their maintainability, we proceed to examine each of these petitions on merits.

17. In Cr. R.P. No. 205 of 1975 the order is a bald one and appears to have been passed in a mechanical manner without the Sub-Divisional Magistrate applying his mind.

18. No doubt the orders in Cr. R.P. Nos. 296, 308 and 311 of 1975 are based on certain facts made available to the concerned Sub-Divisional Magistrates, However, since the period mentioned in the respective orders has expired long back, no useful purpose will be served in remitting the cases back.

19. In the result, we allow Cr. R.Ps. Nos. 205, 296, 308 and 311 of 1975 and quash the impugned orders.

20. In Cr. R.P. No. 202 of 1975, the Sub-Divisional Magistrate, Madhugiri, obtained a report of the police on a private complaint of one Nagalingaiah who had invoked the powers of the Court under Section 145 of the Code, and to interefere in his favour in the dispute between him and one Sidda Reddy. After receiving the police report, and after considering the relevant materials on record, the learned Magistrate has proceeded to take action under Section 145 and has also attached the property under Section 146 (2) of the Code. It cannot be said that the order of the Sub-Divisional Magistrate was without any basis. In the circumstances, we find no reasons to interfere with that order. Hence, we dismiss this revision petition.


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