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Manohar Nath Sher Vs. State of J. and K. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1980CriLJ292
AppellantManohar Nath Sher
RespondentState of J. and K.
Cases ReferredState of U.P. v. Col. Sujan Singh
Excerpt:
- .....finally determine the rights of the parties in controversy. the object of enacting the bar to the revision of 'interlocutory orders' in the code of criminal procedure, by adding section 435 (4-a) to the criminal procedure code by the legislature which reads thus:(4-a) the powers of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.was to avoid delay in the disposal of cases, as by coming up in revision against 'interlocutory orders', there occurs delay in the disposal of criminal proceedings.6. generally speaking, an 'interlocutory order' is one which is passed at some intermediate stage of a proceeding to advance the cause of justice, for the final determination of the rights.....
Judgment:

Adarsh Sein Anand, J.

1. The petitioner is standing trial in the Court of Special Judge, Anti-Corruption, Kashmir Province, Srinagar for offences under Section 5(2) of the Prevention of Corruption Act and Section 161, R. P. C, During the pendency of the trial, the prosecution examined the prima mover Shri M. A. Daraboo as a witness, While the witness was being cross-examined, an application was filed on behalf of the petitioner for summoning the interrogation report and some other record connected with the detention of the witness under the Defence of India Apt. Notice of the application was issued to the Public Prosecutor, who filed his objections thereto. An objection was raised on behalf of the prosecution that the record sought to be summoned was 'top secret' being connected with the security of the State and being an un-published official record, its disclosure was likely to prejudice public interest. An application signed by Shri D. N. Kaul, the Inspector-General of Police, stating that the record summoned is an un-published official record relating to the affairs of the State and its production would be prejudicial to the interest of the State was also filed. In the said application the I. G. P. claimed privilege in respect of the production of the record in the Court under Section 123 of the Evidence Act.

2. The learned Special Judge vide the impugned order disposed of the application of the petitioner for summoning the record and the claim of privilege by the I. G, P. by observing:

I therefore, am of the safe opinion that the privilege claimed by the IGP must be allowed till the Court has final opportunity to appreciate the evidence of the PW for whose conduct, the record is being sought to be produced. The Court at the instance of the counsel for the accused will call the relevant record for inspection, other than the parties in case same is needed to appreciate the conduct of the PW at the argument stage.

The learned Special Judge disposed of the application and summoned the witness for further cross-examination for 30th Dec, 1978, without calling for the summoned record. Aggrieved, the petitioner has come up to this Court by means of the present revision petition. When the revision petition came up for hearing before Hon'ble the Chief Justice, a preliminary objection was raised, on behalf of the State by the learned Addl. Advocate-General to the effect that in view of the provisions of Section 435 (4-a) of the Amended Code of Cr. Procedure, the impugned order was not revisable, it being merely an interlocutory order. The learned Chief Justice being of the opinion that the scope of Section 435 (4-a) of the Amended Code of Cr. Procedure required an authoritative pronouncement, directed that this case and the other connected cases be referred to a Full Bench of this Court for its disposal and that is how this revision petition had been put up before us for disposal. In the instant case, however, it is not necessary to determine the scope of Section 435 (4-a) of the Cr. P. C,, as that scope is under consideration of the Full Bench in the connected cases. In the present case we are only called upon to determine whether an order granting privilege under Section 123 of the Evidence Act is a 'final order' or an 'interlocutory order'? We are hot called upon to adjudicate upon the correctness or otherwise of the order for in the event it is held that the impugned order can be revised by the High Court, the case shall go to the learned single Judge for its disposal on merits.

3. According to Mr. K. N. Raina, appearing for the petitioner, the impugned order is a final order because it has finally disposed of a matter of 'subordinate enquiry' and therefore, is revisable and the bar of Section 435 (4-a) is not attracted. It is argued that the order effects the right of the petitioner to cross-examine the witness with reference to the record about which privilege had been granted by the learned Special Judge and is 'final' inasmuch as the right to cross-examine the witness with regard to those documents, once lost, cannot be reclaimed in appeal or revision. Mr. Raina has relied upon Madhu Limaye v. State of Maharashtra : 1978CriLJ165 in support of his assertion that the impugned order is not an 'interlocutory order.'

4. Mr. K. N. Bhat, learned Addl. Advocate-General, has on the other hand argued that the flexibility which the petitioner wants to introduce into an order of this type, to style it as a 'final order' was never contemplated by the legislature. According to Mr. Bhat, the impugned order is only an 'interlocutory order' as the decision does not in any way put to an end the proceedings in which the order has been passed and in view of the bar contained in Section 435 (4-a). Cr. P. C. the revision is not maintainable.

5. The legal world has long been acquainted with the expression 'interlocutory order' although it has found its place in the Cr. P. C., probably, for the first time, I am of the opinion, that the expression 'interlocutory order' would not change its complexion, when applied to the Code of Criminal Procedure, In the Code, there is rib definition of the term 'interlocutory order' and it would, thus, be permissible upon the well accepted principles of construction of statutes, to refer the meaning given to the same expression in other statutes, provided the latter is not repugnant to the context in which it has been used in the Code of Criminal Procedure. In the Civil law, it is well set-tied, the expression 'interlocutory order' implies an order which is made during the progress of the case and relates to some incidental matters which do not finally determine the rights of the parties in controversy. The object of enacting the bar to the revision of 'interlocutory orders' in the Code of Criminal Procedure, by adding Section 435 (4-a) to the Criminal Procedure Code by the legislature which reads thus:

(4-a) The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.

was to avoid delay in the disposal of cases, as by coming up in revision against 'interlocutory orders', there occurs delay in the disposal of criminal proceedings.

6. Generally speaking, an 'interlocutory order' is one which is passed at some intermediate stage of a proceeding to advance the cause of justice, for the final determination of the rights between the parties and are procedural steps taken in an adjudication for assisting the parties in the prosecution of their cases. However, if the decision on an issue brings to an end a suit or proceedings, the order, even, if made at an intermediate stage, would be a 'final order' but if the suit or proceeding is still alive, in spite of the order, one way or the other, and has got to be tried in the ordinary way, no finality is normally attached to such an order, at whatever stage during the proceedings it may have been made. Thus, an 'interlocutory order made by a Court without jurisdiction, can be inteerfered with in division at an early stage, because an order without jurisdiction is a nullity in the eye of law and if proceedings are allowed to continue in such a case, the harassment of the litigant,- which the amendment sought to avoid, would be much greater, as he would have to face trial, which ultimately will have to end in his favour. In those cases the bar of Section 435 (4-a) Cri. P.C. would hot be attracted as the acceptance of the plea of the accused would bring those proceedings to an end.

7. So far as : 1978CriLJ165 (supra) is concerned their Lordships laid down that an interpretation and universal application of the principle that 'what is not a final order must be an interlocutory order' is neither warranted nor justified and went on to observe that the order impugned in that case, which had rejected the application challenging the jurisdiction of the Court to proceed with the trial, was not an 'interlocutory order' so as to attract the bar of Sub-section (2) of Section 397, Criminal P. C., for in the event the plea of the petitioner was accepted therein, the proceedings would have come to an end and would not be allowed to continue.

8. In the instant case, however, the impugned order only granted the claim of privilege to the State under Section 123 of the Evidence Act, An order allowing or disallowing a claim of privilege does not put to an end the proceedings in which the order is made. Such an order is only a step in the proceedings and only relates to a procedural matter and does not purport to decide the rights of the parties. Such an order can only be termed as an 'interlocutory order.' This point in any case, is squarely covered by a judgment of the Supreme Court in the State of U.P. v. Col. Sujan Singh : 1965CriLJ94 .

9. In that case, the respondents were prosecuted for an offence under Section 6 (1) (a) of the Prevention of Corruption Act, 1947 after obtaining sanction under Section 197 of the Cr. P. C. An objection was taken during the trial before the Court that the sanctioning authority had not applied its mind to the grant of sanction. It was stated by the respondent, that on a representation made by one of the accused, certain notings had been made by the Dy. Secy. in the Home Department which were relevant to support the arguments made. An application was filed before the Special Judge to summon that record of the Home Deptt. The Secretary, Ministry of Home Affairs, who was called upon to produce document, claimed privilege on the ground that the production of the record, containing notings, would not be in the interest of the State. The learned Special Judge rejected the claim of privilege raised by the Govt. and that order of rejection was upheld by the High Court. Aggrieved, a Special Leave petition was filed in the Supreme Court, where an objection was taken by the respondents that the order refusing privilege was only an 'interlocutory order' and not a final order, as envisaged in Article 134 of the Constitution, Their Lordships opined thus:

An order allowing the application of the accused for the production of a document by the Union Government and rejecting the claim of privilege by the Union Government in a pending criminal proceeding even if confirmed by the High Court in revision is only an interlocutory order and not a final order within the meaning of Article 134(1). 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. The indirect effect of that order on a third party to the proceedings, viz., the Union Government who does not seek to question that order, does not deprive the order of its interlocutory character.

(emphasis supplied).

10. The facts of the Supreme Court case are much too similar to the facts of the instant case and the law laid down therein is fully applicable to the instant case.

11. Thus, in view of the authoritative law laid down by their Lordships in the aforesaid authority, it must be held that the impugned order in the instant case is only an 'interlocutory order' and the bar contained in Section 435 (4-a) of the Cr. P. C. is attracted and the revision petition against such an order is not maintainable.

12. In view of the aforesaid discussion, this revision petition must be dismissed as not maintainable.

13. The parties through their learned Counsel are directed to appear before the learned Special Judge on 11-9-1979.

Mian Jalal-Ud-Din, C.J.

14. I have had the benefit of going through the lucid judgment prepared by my learned brother Anand, J. I fully agree with the observations made and the conclusions arrived at by him.

15. In fact as to what is an interlocutory order within the meaning of Section 435 (4-a), Cr. P. C. has been debated before us in a bunch of criminal revisions, There is no gainsaying the fact that an order assumes the character of an interlocutory order, if it is passed at an intermediary stage of proceedings and does not finally determine the rights between the parties. This point has exhaustively been dealt with in the other Full Bench cases and I need not reiterate my observations made in those cases.

16. One important thing which has come to my notice while reading the judgment of my learned brother is that there is a direct authority of the Supreme Court dealing with the proposition in hand. It is curious that none of the counsel for the parties referred to this authority in the course of their arguments.

17. Now that the decision of the Supreme Court directly covers the point, the revision is not maintainable.

18. I agree that the revision petition be dismissed as not maintainable.

G.M. Mir, J.

19. I have read the lucid order proposed by my learned brother Anand J. and the note appended to it by my Lord the Chief Justice. I agree with the conclusion arrived at which is squarely based on a judgment of the Supreme Court reported in : 1965CriLJ94 , I must, however, add that to me it appears that the order impugned is in the nature of an interlocutory order also on the ground that it purports to have postponed the adjudication on the issue between the parties. It has left the question open till the scrutiny of the document as well as the deposition of the witness is concluded.

20. I am of the view that the impugned order as any other order needs to be interpreted as a whole and not on the basis of a word or an expression appearing here and there in the order.


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