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Thakur V. Hariprasad Vs. State of A.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1977CriLJ471
AppellantThakur V. Hariprasad
RespondentState of A.P.
Excerpt:
.....for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and..........is clearly found in section 439 cr.p.c. as orders granting bail or refusing bail or cancelling bail to accused persons are merely 'interlocutory orders' which cannot be revised by the superior courts and as the question of bail to accused persons either in its grant or in its cancellation is of considerable importance, the legislature invested the high court and the sessions court with special powers regarding bail. section 439, cr.p.c. reads as follows:439. special powers of high court or court of session regarding bail....(1) a high court or court of session may direct....(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary.....
Judgment:
ORDER

Madhusudan Rao, J.

1. The Inspector of Police C.B.C.I.D. Hyderabad filed 11 charge-sheets against the petitioner in the year 1971. The petitioner was granted bail in all the 11 cases and the cases are now pending trial before the III Metropolitan Magistrate, Hyderabad. One of the cases is C.C. 500/75 in which the petitioner is being tried for offences punishable under Sections 420, 468 and 421 I.P.C. After the commencement of the examination of the witnesses for the prosecution in some of the cases, in June, 1976 the prosecution filed an application in the court of the Metropolitan Sessions Judge, Hyderabad under Section 439(2) Cr.P.C. requesting the Court to cancel the bail granted to the petitioner in C.C. No. 500/75. It was alleged in the application that the petitioner was trying to win over the witnesses and that his being at large would be highly detrimental to the prosecution. In support of the submission that the petitioner was interfering with the prosecution witnesses, the prosecution filed two affidavits. One of the affidavits is that of the Inspector of Police, who investigated into the case and is in charge of the prosecution. The other affidavit is that of one M. Eanga Reddi, a witness for the prosecution. The petitioner opposed the application denying the allegations made against him through an affidavit. On a consideration of the two affidavits filed on behalf of the prosecution and the affidavit of the petitioner, the learned. Sessions Judge came to the conclusion that the petitioner was abusing the bail granted to him and accordingly passed an order cancelling the bail granted to the petitioner in C.C. No. 500/75. This revision petition is directed against the said order of the Sessions Judge, cancelling the bail.

2. Sri C. Padmanabha Reddi, the learned Counsel for the petitioner contends that the Sessions Judge ought not to have entertained the application for cancellation of the bail in so far as such application for cancellation of the bail ought to have been preferred before the trial Magistrate under Section 437(5) Cr.P.C. It is also contended that the Sessions Judge acted illegally and improperly by relying on the false affidavit of Ranga Reddi and the vague affidavit of the Inspector of Police. It is urged that the allegations in the affidavits of Ranga Reddi and the Inspector of Police had been invented only to harass the petitioner. Appearing for the State, the learned Advocate-General contends that the instant application for revision of the order of the Sessions Judge is not maintainable in view of the bar under Section 397(2) Cr.P.C. and that at any rate, there is absolutely nothing illegal or improper or incorrect in the Impugned order of the Sessions Judge.

3. While Section 397(1) Cr.P.C. invests the High Court with the power to revise the finding, sentence or order passed by an inferior court, Section 397(2) provides that

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.

Relying on the observations of their Lordships of the Supreme Court in Mohanlal v. State of Gujarat : 1968CriLJ876 Sri Padmanabha Reddi contends that the order passed by the learned Sessions Judge is a final order and therefore this Court has every power to revise the same under Section 397(1) Cr.P.C. In the case relied on their Lordships were considering the question, whether an order passed by the High Court in a Criminal Revision Case is a 'final order' within the meaning of Article 134(1)(c) of the Constitution of India, In considering whether the revisional jurisdiction of a High Court is barred under Section 397(2) Cr.P.C. what is necessary for consideration is not whether the order is a 'final order' but whether the order in question is an 'interlocutory order' passed in any appeal, inquiry, trial or other proceeding. Even an 'interlocutory order' would be a 'final order' until when it is modified, rescinded or cancelled. There is no definition of an 'interlocutory order' in the Code of Criminal Procedure. According to the Concise Oxford Dictionary, 'interlocutory' means 'Pronounced during course of a legal action.' In Halsbury's Laws of England, 3rd Edition, Vol. 22, it is stated as follows in para. 744 under Section 1608.

1608. Interlocutory judgment or order. An order which does not deal with the final rights of the parties, but either (1) is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.

In the Corpus Juris Secundum, Vol. 24, it was observed as follows under Section 1643 at page 241:

While the question as to what constitutes a final judgment is a subject of much discussion, for the purposes of an appeal it has been said that a judgment is final where it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined. Any judgment on which a person is liable to be and is in fact imprisoned is a final decision from which an appeal may be taken. According to some authorities, final judgment in a criminal case is the sentence of the Court. However, so long as anything remains to be done there can be no final order.

4. In Vol. 47 of the Corpus Juris Secundum at page 85, it is mentioned as follows:

Interlocutory. Not final provisional temporary. The term is opposed to 'definitive' and has been contrasted with 'final'.

IN LAW

Something intervening between the commencement and the end of a suit which decides some point or matter; but which is not a final decision of the whole controversy.

5. In Croasdell and Cammell, Laird & Co. Ltd. In re. (190.6) 2 KB 569, an application was filed before the Divisional Court for setting aside an award which an Arbitrator had made in the form of a special case. The application was allowed and the Divisional Court set aside the award. The question arose whether the order setting aside the award is a final order against which an appeal could lie. Speaking for the King's Bench, Lord Collins M.R. observed as follows:

The order passed against is one made upon an application to set aside an award which an arbitrator had made in the form of a special case, upon the ground of some technical misconduct, or excess of jurisdiction on the part of the arbitrator. The result of the application was that the award was upon that ground set aside by the Divisional Court. The decision upon that application involved no determination of the rights of the parties as regards the matters which were in dispute in the arbitration. It simply decided that the award given was abortive and did not pretend to determine the various questions raised for decision by the special case, thus leaving the matter where it stood before the arbitrator had made his award. The question now is whether the order so made by the Divisional Court was final or interlocutory, It appears to me that, whatever test is applied, it is certainly interlocutory.

6. In Kuppuswami Rao v. The King AIR 1949 FC 1 : 49 Cri LJ 625, the question arose whether an order by the High Court in a Criminal Revision Case dismissing the objections of the accused for his prosecution, is a final order against which an appeal could lie to the Federal Court under Section 205 of the Government of India Act, 1935. While deciding the question, Kania, C.J. observed as follows:

It was argued on behalf of the appellant that the words judgment or final order should be given a wider interpretation so as to enable the court to entertain appeals like the present in criminal matters in any event. We are unable to accept this contention. The words are used in Section 205(1) Constitution Act, and impart jurisdiction to the Federal Court to entertain appeals both in civil and criminal matters. As the seme words give jurisdiction to the Court in both classes of cases, it will be improper to construe them in a certain way when applicable to appeals in civil matters and give them a wider meaning when considered in connection with appeals from criminal proceedings.

7. After discussion of the various authorities on the subject in regard to the order of the High Court, in para 19 of the judgment, his Lordship further observed:

It is clearly not a decree, It Is also not a judgment, as it is only an interlocutory order made on a preliminary objection in the course of a criminal trial. It is also not a final order, as the order is not on a point which, decided either way, would terminate the matter before the Court finally. In the words of Sir George Lowndes to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way.

8. In Jethanand & Sons v. State of U.P. AIR 1961 SC 704, the Supreme Court has observed:

An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the Civil Proceedings. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Article 133. (of the Constitution of India.)

9. In State of U.P. v. Col. Sujan Singh : 1965CriLJ94 , the accused filed an application before the trial court (Special Judge) for the production of a document by the Union Government. The Union Government claimed privilege. The trial court allowed the application of the accused. The order was confirmed by the High Court in revision. When the State preferred an appeal to the Supreme Court their Lordships of the Supreme Court have pointed out as follows:

Can it be said that the Special Judge in allowing the petition of the respondents to call for the production of a document from the Union Government passed a final order in the criminal proceedings? The criminal proceedings were taken against the respondents for an offence under Section 6(1)(a) of the Prevention of Corruption Act, 1947. The proceedings are now pending in the Court of the Special Judge. In the course of these proceedings the respondents filed an application for the production of a document by the Union Government and that was allowed by the Court. The said order is only an interlocutory order pending the proceedings. It does not purport to decide the rights of the parties, namely the State of U.P. and the accused. It enables the accused to have the said document duly proved and exhibited in the case. It relates only to a procedural step for adducing evidence.

10. In Central Bank of India v. Gokal Chand : [1967]1SCR310 while considering a case under the Delhi Rent Control Act, 1958, their Lordships of the Supreme Court have pointed out that interlocutory orders are merely procedural and do not affect the rights or liabilities of the parties in the pending proceeding and that they are merely steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding. Even in Monanlar's case relied on by the petitioner's learned Counsel, the Supreme Court has observed that

In some of the English decisions where this question arose one or the other of the following four tests was applied:

1. Was the order made upon an application such that a decision in favour of either party would determine the main dispute?

2. Was it made upon an application upon which the main dispute could have been decided?

3. Does the order as made determine the dispute?

4. If the order in question is reversed, would the action have to go on?

11. In Dhola v. State 1975 Cri LJ 1274 (Raj), considering the import of the expression 'interlocutory order', Beri C.J. observed as follows after reviewing relevant authorities:

On the basis of the aforesaid survey, it is reasonable to say that an interlocutory order is one which is passed at some intermediate stage of a proceeding generally to advance the cause of justice for the final determination of the rights between the parties. I see no reason to hold that the expression 'interlocutory order' changes its complexion when applied to the Code of Criminal Procedure, and on the touchstone of the authorities mentioned above, I am inclined to be of the view that the grant or refusal of a hail application is essentially an interlocutory order. My reasons briefly are that an accused is usually enlarged on bail in non-bailable cases to enable him to defend himself adequately and thereby assist the cause of justice. It is ordinarily at some intermediate state between the commencement and the end of criminal cases that it is granted and further that it is open to recall or modification and it does not determine the guilt or innocence of the accused and thus fulfills all the characteristics usually attached to an' interlocutory order.

12. In the light of the above discussion, it cannot but be held that the impugned order of the learned Sessions Judge cancelling the bail granted to the petitioner in C.C. No. 500/75 on the file of the III Metropolitan Magistrate, Hyderabad is an 'interlocutory order' which does not determine the guilt or innocence of the accused petitioner. It does not terminate the trial of the petitioner on the merits of the case. No revision therefore lies against the order in view of the prohibition in Section 397(2) Cr.P.C.

13. In view of the above finding in regard to the maintainability of this revision petition, though the petitioner's learned Counsel has argued on the merits of the order in great detail and at considerable length, I do not deem it necessary to examine the merits of the order cancelling the bail.

14. The other contention that the Sessions Judge ought not to have entertained the application filed by the prosecution under Section 439(2) Cr.P.C. in so far as the same relief could have been sought for under Sub-section (5) of Section 437 Cr.P.C. before the trial Magistrate, is not of much substance. No doubt, it is a general rule of practice that when the jurisdiction in regard to a particular matter is concurrently exercisable by more courts than one, the party should first approach the court of the lowest jurisdiction. It is, however, well settled that in special circumstances, the party can first approach even the court of the higher jurisdiction and there is no legal bar for such approach. In the instant case, the respondent has given satisfactory reason for approaching the Sessions Court instead of the Court of the trial Magistrate.

15. Before parting with this case, it may be necessary to advert to one important submission made by the petitioner's learned Counsel. He says that there may be serious miscarriage of justice if the High Court should be having no power of revision of orders granting bail or refusing bail or cancelling bail to an accused person. It is urged that there can be cases where the trial Magistrate acting under Section 437(5) or the Sessions Judge acting under Section 439(2), might illegally and unjustly cancel the bail granted to an accused and it might result in irreparable damage to the accused if the High Court should decline to interfere in such cases on the ground that the order of cancellation of bail is merely an 'interlocutory order and that therefore the jurisdiction of the High Court is barred under Section 397(2) Cr.P.C. An answer to this argument is clearly found in Section 439 Cr.P.C. As orders granting bail or refusing bail or cancelling bail to accused persons are merely 'Interlocutory orders' which cannot be revised by the superior courts and as the question of bail to accused persons either in its grant or in its cancellation is of considerable importance, the Legislature invested the High Court and the Sessions Court with special powers regarding bail. Section 439, Cr.P.C. reads as follows:

439. Special powers of High Court or Court of Session regarding bail....

(1) A High Court or Court of Session may direct....

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section.

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the court of Session or which, though not so triable is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing., of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

16. Under the above extracted provisions in regard to the special powers, if the trial Magistrate improperly grants bail, the Sessions Court or the High Court can cancel the bail under Section 439(2) Cri.P.C. even though the High Court or the Sessions Court cannot revise the order of the Magistrate under Section 397. So also, if the Magistrate refuses bail or cancels the bail under Section 437(5) illegally and unjustly, the Sessions Judge can grant bail under Section 439(1) though he cannot revise the order of the Magistrate under Section 397. In any case where a Magistrate grants bail to an accused person and the Sessions Judge cancels it illegally and unjustly in exercise of his power under Section 439(2) the High Court has every power to grant bail to such person under Section 439(1) even though the High Court cannot revise the order of the Sessions Judge cancelling the bail. The powers of the High Court under Section 439(1) are very wide and it can direct that any person accused of an offence and in custody be released on bail, if the High Court considers that he should be released. Admittedly, the petitioner is not in custody in so far as the order passed by the learned Sessions Judge cancelling the bail has not so far been implemented. It is therefore not possible for this Court to consider the petitioner's case under Section 439 Cr.P.C. even.

17. For the reasons recorded supra, this revision petition is dismissed as not maintainable.


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