Awadh Narain Lai vs State of U.P. and Another

S.K. Mookerji, J.—This is an application u/s 482, Code of Criminal Procedure by Avadh Narain Lal for quashing the order dated 24.09.1981 passed by Sri J.P. Sharma, Special Judge, Kanpur in Special Trial No. 8 of 1981.

The facts of the case are that there are two accused, Avadh Narain Lal and Bans Gopal, who have been charge sheeted by the Sub Inspector of Police of Police Station Fazalganj, Kanpur for offences Under Sections 161, IPC, Section 5(2) of the Prevention of Corruption Act and Section 120B, IPC. The applicant Avadh Narain was Amin, Sales tax, admittedly, a public servant, and accused Bans Gopal, a Naib Tehsildar, Collection. A trap was laid in which the above two named accused were apprehended. It is further stated that the accused vadh Narain Lal was arrested on the spot and accused Bans Gopal surrendered in court on 21.04.1980. The occurrence is dated 02.03.1980. In this case the sanction for the prosecution in respect of Bans Gopal was filed by the prosecution, and is not in dispute or controversy in the present application u/s 482, Code of Criminal Procedure In the court below an objection was raised on behalf of the applicant Avadh Narain Lal that there was no sanction, and as such, the court could not take any cogniance against him in view of Section 6 of the Prevention of Corruption Act, 1947. This objection raised on behalf of the applicant Avadh Narain was overruled by the impugned order dated 24th September, 1981 and it was held that if the public servant was not in service at the time when prosecution was launched, then no question of sanction arose. Hence, this application u/s 482, Code of Criminal Procedure On this application u/s 482, Code of Criminal Procedure on 9th November, 1981 notice was issued and further proceedings in trial No. 8 of 1981 had been stayed.

I have heard learned Counsel for the parties. Sri R.N. Pandey appearing for the applicant argued that in absence of the sanction as contemplated u/s 6 read with Section 197 Code of Criminal Procedure the entire proceeding before the Special Judge against Avadh Narain Lal was void abilities, and the learned Special Judge had no jurisdiction to take cognizance of the offences u/s 161, IPC and Section 5(2) read with Sub-section (d) of the Prevention of Corruption Act, 1947. The learned Assistant Government Advocate, Sri Dwivedi raised a preliminary objection that the appijauon u/s 482, Code of Criminal Procedure was not at all maintainable as in the present case a revision was maintainable u/s 397 of the Code of Criminal Procedure. 1973. It was further urged on behalf of the State that in view of the decision in R.S. Nayak Vs. A.R. Antulay, , no previous sanction was necessary as contemplated by Section 6 of the Prevention of Corruption Act.

After hearing the parties at length, I propose to decide the preliminary objection raised by the learned Assistant Government Advocate.

The first question in the present case which calls for determination, is whether the impugned order is an interlocutory order, and if it is not so, whether the said order is revisable u/s 397 Code of Criminal Procedure Under the present amended Code of Criminal Procedure. Section 397, has been incorporated and Sub-section (2) of Section 397 provides as under:

The power of revision conferred by Sub-section (i) shall not be exercised if the relation" to; any interlocutory order passed in any appeal, enquiry, trial or other proceeding. ''Thus, Sub-section (2) of Section 397 Code of Criminal Procedure now provides that the power of revision conferred by Section 397 shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. Revisions shall, therefore, lie against such order which is not interlocutory in nature. It is a settled law that the word ''interlocutory'' is opposed to final. The courts in India have recognized a category of orders falling in the middle course between an interlocutory order and a final order which would escape the bar u/s 397(2) Code of Criminal Procedure In some cases such orders have been termed as ''intermediary orders.'' It is therefore, clear that an order rejecting an application or plea of the accused which, if accepted, would have concluded the proceedings, will not amount to an interlocutory order and may fall within the category of an intermediary order. Applying this test to the facts of the present case, it is clear that in case the plea of the applicant is accepted as raised before the court below, then the proceedings against the applicant shall be concluded. The plea of the applicant in the present case is that the court below had no jurisdiction to take cognizance of the offence against him except with the previous sanction, as contemplated u/s 6 of the Prevention of Corruption Act. In the present case, the court below has rejected the plea on the ground that no such sanction was required in the case of the applicant. Thus, the impugned order of the court below rejecting the plea of the applicant which, if accepted, would conclude the proceedings against him, would not amount to an ''interlocutory order.'' However, in my opinion, this order shall come within the category of intermediary orders. In consequence, the bar u/s 397(2), Code of Criminal Procedure will not come in the way of applicant in filing a revision. It was, therefore, open to the applicant to file a revision against the impugned order u/s 397, Code of Criminal Procedure in the present case.

In the present case instead of filing a revision u/s 397, Code of Criminal Procedure the applicant has filed the present application u/s 482, Code of Criminal Procedure This application is not at all maintainable, it is settled law that where a particular order is expressly barred u/s 397(2), Code of Criminal Procedure and cannot be subject of revision before the High Court, then to such a case the provisions of Section 482, Code of Criminal Procedure would apply. The inherent power u/s 482, Code of Criminal Procedure being an extraordinary and residuary power, is not available in regard to matters which have been specifically provided for under other provisions of the Code. Hence, as a general rule, the High Court would not exercise its power u/s 482, Code of Criminal Procedure where any party could have, but did not, avail of the remedy u/s 397 Code of Criminal Procedure.

In view of the above discussion, I am of the opinion that the application in the present case u/s 482, Code of Criminal Procedure is not maintainable. It is further pointed out that it the stage of the last hearing an application had been moved on behalf of the applicant Avadh Narain Lal praying therein that the aforesaid application u/s 482, Code of Criminal Procedure be converted into a revision u/s 397/401, Code of Criminal Procedure I shall pass a separate order on that application.