Chet Ram Thakur, J.
1. This revision petition under Section 401 of the Code of Criminal Procedure 1973 (shortly called the Code) read with Article 227 of the Constitution has been filed by the State for revising the order of the Sessions Judge, dated 24-6-1974. The Magistrate committed the respondents for trial under the provision of Sections 302/34 and Section 342 of the Indian Penal Code. The learned Sessions Judge, it appears, after going through the police record opined that it was not a case under Section 302, I.P.C. so as to frame a charge under that Section. According to him, the case was only one under Section 342, I.P.C. He further observed that the opinion of the medical officer was that the injuries mentioned in his report, dated 14-2-1974 could not have been possible by striking against protruding stones or rocks, etc. and they were caused by some weapon. This fact is to be established by the prosecution during the trial. It is to be determined during the trial whether the said injuries were simple injuries or grievous injuries. The offences under Sections 323, 325 and 326, I.P.C. are triable by a Magistrate and similarly the offence under Section 342, I.P.C. is also one triable by any Magistrate and, therefore, he sent the record of the case to the Chief Judicial Magistrate for trial according to law.
2. The learned Advocate-General contends that the Sessions Judge has discharged toe accused for the offence under Section 302, I.P.C. for which they were committed by the Magistrate and that there was sufficient material evidence on the record to frame a charge under Section 302, I.P.C. and the learned Sessions Judge was wrong in holding that it was an offence under Sections 342 and 326, I.P.C.
3. A preliminary objection has been taken by the counsel for the respondents that it is an interlocutory order and that no revision under Section 401 of the Code is maintainable and for this proposition he has placed reliance on Bhupinder Kumar Bhatnagar v. State 1975 Cri LJ 1185 (Delhi), wherein it has been held that an order framing the charge does not decide the question of guilt or the innocence of the accused. A charge merely puts him on notice as to the offences for which he is being tried. The order merely keeps the proceedings alive. Even if the order framing a charge is treated as an order declining to discharge the accused even then it does not amount to a final order. Further, it was held that even if it may not be open to the trial court to reconsider the order framing the charge against the accused person, it will not be a final order. It still remains as interlocutory order and by virtue of Sub-section (2) of Section 397, the power of revision conferred on the High Court cannot be exercised in relation to such an interlocutory order. In that case the petitioners were committed by the Metropolitan Magistrate, Delhi, to take their trial in the court of Session and a charge had been framed against them for an offence under Section 376 of the Indian Penal Code. The petitioners filed the revision under the Code against the framing of charge against them. According to the petitioners there was no material on the record to make out a prima facie case under Section 376, I.P.C. A preliminary objection was raised by the learned Counsel for the State against the maintainability of the petition under the provisions of the Code and it was pointed out that the order of the Sessions Judge framing charge against the petitioners was in the nature of an interlocutory order and that under Section 397(2) of the Code no revision lay against such an interlocutory order. It was in those circumstances that the High Court held that it was an interlocutory order and no revision, as stated before, was maintainable against the framing of the charge as it does not decide the question of guilt or innocence of the petitioners.
4. The present is a case where the respondents have been discharged under Section 302, I P.C., and, is, so far as the order not to frame a charge under Section 302, I.P.C. for which charge they had been committed by the Magistrate to the Sessions Judge is clearly an order of discharge although the Sessions Judge has not stated in so many words that they are discharged but it is implied from the very nature of the order in not framing the charge under Section 302, I.P.C, that he discharged the accused in so far as the offence under Section 302, I.P.C. is concerned. Now the question before this Court is whether an order of discharge is an interlocutory order or not. To me, it appears that an order of discharge for an offence under Section 302, I.P.C. puts an end to the case in so far as the offence under Section 302, I.P.C. is concerned. The learned Sessions Judge has found that it was not 3 cast- under Section 302, I.P.C. and the offences, as made out, were such as were triable by the Magistrate. Therefore, there is a finality in so far as the order of discharge under Section 302, I.P.C. is concerned, and, therefore in my opinion, it could not be said to be an interlocutory order which means that it is not a final order but it is a provisional or temporary order. The expression 'interlocutory' is not defined anywhere in the Code. In the book Corpus Juris Secundum, Volume 47, at page 85 it has been defined as 'something intervening between the commencement and the end of suit which decides some point or matter but which is not a final decision of the whole controversy. In this very book Corpus Juris Secundum, Volume 22 at page 919, it has been stated 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 on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined. An interlocutory order is one given during the course of the case on a plea or matter which is only intermediary and does not finally determine or complete the action. The rule that an appeal will not lie from an intermediary or an interlocutory order is not one of unyielding inflexibility and an exception may be made where the order is to some extent final and involves. basic human right and great injustice, Therefore, from this it follows that an in terlocutory order is one which does not finally and completely end and settle a controversy. The order of discharge, in my opinion, cannot be said to be provisional or interlocutory, inasmuch as the Magistrate to whom the case has been sent cannot try the case under Section 302, because for that it is the Sessions Judge who has got the exclusive jurisdiction and by sending the case to the Magistrate, the Sessions Judge has finally determined that it was not an offence under Section 302, and, therefore, this order of discharge was final and definite and it leaves nothing to be decided thereafter except that the respondents were to be tried for the minor offences.
5. In Bhupinder Kumar Bhatnagar's case 1975 Cri LJ 1185 (Delhi) (supra) several authorities have been cited and discussed to bring out as to what is an interlocutory order. In para 9, it has been observed that in the course of an inquiry or trial under the Code of the Court is called upon to determine several questions before passing an order either discharging the accused or convicting him or acquitting him, as under the old Code such questions were subject to revision by the Sessions Judge or the High Court. But the position is different in the new Code and Sub-section (2) of Section 397 has been introduced for the first time ousting the jurisdiction of the revisional Courts in respect of interlocutory orders passed by the subordinate court. Applying the test laid down in several authorities, it was, therefore, held that a charge merely puts the petitioner on notice as to the offences for which he is being tried. The order merely keeps the proceedings alive. Even if the order framing a charge is treated as an order declining to discharge the petitioner, even then it does not amount to a final order. Therefore, this authority will not be of any assistance to the learned Counsel for the respondents, because in the instant case the Sessions Judge has discharged the accused for an offence under Section 302 and has finally concluded the matter, Therefore, in my opinion, it is a final order in so far as the offence under Section 302 is concerned and that way the revision is maintainable and it is not barred under the provisions of Section 397(2) of the Code.
6. The next question is whether there is a prima facie case made out by the petitioner to frame a charge under Section 302, I.P.C. The learned Counsel for the respondents has taken me through the statements of Prem Lal, Sant Ram and Mast Ram to show that there was not even the slightest suggestion in the evidence with regard to the commission of the crime by the accused persons. The learned Advocate-General has also invited my attention to the medicolegal report.
7. I have gone through the statements of the witnesses and the medico-legal report. It is an admitted fact that the deceased was last seen in the company of the accused in Bemloo on the night of the alleged occurrence. The respondents also lodged a report in which they had stated that the deceased had jumped down the precipice. It was evening time. It is also a common case that the respondents took the deceased from his house, because according to the respondents, the deceased had taken a watch from their house when he was called there to open a box because the deceased was said to be skilled in this art. According to the respondents the deceased had stated that he had kept that watch with a Pandit who lived in Bemloo. Therefore, the respondents took him to that place and there it is stated that he jumped down and they lodged the report. The doctor has found injuries on his head, which according to the prosecution version, were caused by the accused persons before he was thrown down the precipice. But the story of the respondents is that he himself jumped down the precipice. Therefore, in these circumstances, I think, there is a prima facie case for a charge under Section 302, I.P.C. It is a different matter whether the witnesses would stand the test of cross-examination or not and what is the offence later on proved. But if the accused have been charged for a minor offence and later on it turns out that the accused are guilty of a major offence then the Magistrate cannot punish them and it is, therefore, more proper for the Sessions Judge to have framed a charge under Section 302, I.P.C. and later if he found that the charge under Section 302, I.P.C. was not made out by the evidence on the record, then he could acquit the accused and if found that they had committed only an offence under Section 326, I.P.C. then he could punish them under that section. The evidence presently is the one recorded by the police under Section 161 of the Code. Therefore, it is only after a regular trial and examining the witnesses in the court and taking the circumstantial evidence into consideration to come to a finding whether the accused did commit the offence under Section 302, I.P.C or not, but at this stage as the circumstances and the evidence appear to me, it is sufficient to frame a charge. In my opinion, the learned Sessions Judge was wrong in holding that no prima facie case was made out to frame a charge under Section 302 and that only offences under Sections 342 and 326, I.P.C, appear to have been made out and which are triable by a Magistrate,
8. Consequently, this revision petition is allowed and the order of the Sessions Judge is set aside and the case is sent back to the Sessions Judge to frame a charge under Section 302, I.P.C. also and to proceed to try the case in accordance with law at an early date.