Bhimi Ram etc. vs Loharu Ram

Chet Ram Thakur, J.—This criminal revision u/s 397 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) is directed against the order, dated 7-7-1975, passed by the Chief Judicial Magistrate, Kulu, rejecting an application filed by the present Petitioner before him under the provisions of Section 210 of the Code. Section 210 reads as under:

Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer u/s 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police reporfdoes not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

At the instance of Loharu Ram a case u/s 302 of the Indian Penal Code for the alleged murders of Parma Nand and Sobha Ram by the Petitioners was registered with the police. The police started the investigation. Thereafter Loharu Ram filed a complaint in the court of the Chief Judicial Magistrate, Kulu, against the Petitioners u/s 302/147/149 and 129 I.P.C. in respect of the same offence. The Chief Judicial Magistrate ordered the issue of non-bailable warrants of arrest against the Petitioners for 18-7-1975, against which the Petitioners filed a revision petition u/s 397 read with Section 399 of the Code to quash the proceedings on the ground that the enquiry held by the learned Chief Judicial Magistrate is against the provisions contained in Section 210 of the Code. The learned Sessions Judge, however, dismissed the revision petition on the ground that no application had been made u/s 210 of the Code either before the Chief Judicial Magistrate or before him and there was no order on the basis of which the revision could be filed. Thereafter the Petitioners submitted an application u/s 210 of the Code before the Chief Judicial Magistrate and prayed therein that the proceedings pending on the complaint of respiondent No. 1 be stayed till the completion of the investigation by the police. This application was also dismissed on 7-7-1975 by the Chief Judicial Magistrate on the ground that it had not been properly presented. Hence the Petitioners filed the present petition.

The order of the Magistrate which is impugned by this revision petition is as under:

Presented by Shri Charan Dass Dogra, Adv. at 11.30 A.M. today. The present application has been moved u/s 210 Code of Criminal Procedure on behalf of the applicants Shri Bhimi Ram, Chandu Ram, Belu Ram, Ganga Ram, Prem Singh and Vijai Singh but none of the applicants is present in the Court. Since the presence of the applicants in criminal proceedings is necessary, the present application is hereby rejected for want of proper presentation. Be consigned.

A preliminary objection has been taken by the learned Counsel for the Respondent with regard to the maintainability of this revision petition on the ground that it is an interlocutory order and u/s 397(2) of the Code the revision is barred. The learned Counsel for the Petitioner contends that it is not an interlocutory order rather it is a final order. The Magistrate has proceeded with the inquiry in the complaint filed by Loharu Ram and side by side there is a case before the police in which investigation is going on. The report in the police had been made before the filing of this complaint by Loharu Ram before the Magistrate and as such the Magistrate could not proceed with the enquiry and he had to stay the proceedings and call for a report on the matter from the police officer conducting the investigation and that both the complaint as also the police report u/s 173 of the Code had to be enquired into or tried together because the accused arrayed in the complaint are those very persons against whom investigation is being conducted by the police.

Learned Counsel for the Respondent submits that this is merely an intermediary order and to support his contention as to what is a final order and what is an interlocutory order he has relied on a number of authorities. In this case he submits that the application has been rejected on the ground that it was not properly presented. The application was presented by the counsel Shri Charan Dass Dogra and as such it could not be said to be an application properly presented and that the Petitioner was not precluded from presenting a fresh application. Before dealing with this aspect of the matter I would like to discuss the authorities which have been cited by the learned Counsel for the parties to show as to what is an interlocutory order and what is a final order and whether this order rejecting the application made u/s 210 of the Code by the Petitioner amounts to an interlocutory order, which may not be revisable u/s 397 or Section 401 of the Code.

The first authority is Arjun Singh Vs. Mohindra Kumar and Others, In this case it had been stated:

Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decided in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the court would be justified in rejecting the same as an abuse of the process of court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O. IX, R. 7, Civil P. C. would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the re-opening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the Defendant to "set the clock back" does not attain finality. But though the same court is not finally bound by that order at later stages, so as to preclude its being reconsidered, and even if the rule of res judicata does not apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts.

The present is a case of an application for stay of the proceedings before the Magistrate initiated on a complaint for the same offence for which the report to the police is being investigated and, therefore, the rejection of the application u/s 210 cannot be said to be an order in the same proceedings. In so far as the dismissal of that application is concerned it is a final order, inasmuch as the right to the Petitioners given for stay of the proceedings in the complaint case is denied and the case is being proceeded with. Therefore, in my opinion, it is not covered by this authority.

The second authority is H.S. Bedi Vs. Smt. Dhanni Devi and Another, and it says:

It is now settled law that a judgment or order is final if it amounts to a complete adjudication of the rights of the parties in dispute, but that if after the judgment or order the dispute still remains to be tried and the rights of the parties remain to be determined, the judgment or order is not final for the purposes of Article 133.

This authority also will not be applicable to the facts of the present case inasmuch as the dismissal of the application u/s 210 amounts to a final order, as it decides the application finally, no matter that the complaint, the proceedings in which were sought to be stayed, is alive. The object of this section is not to harass a person against whom a report in the police is also lodged and investigation is going on. The investigation as the record shows is not yet complete and by filing the complaint the complainant wants to secure an order of conviction and it is with that end in view that the Magistrate is enjoined to stay the proceedings on a complaint when he has information that the police is also investigating the same offence.

The third authority is AIR 1949 1 (Federal Court) . It only says:

Final Order must be an order which finally determines the points in dispute and brings the case to an end.

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.

In a criminal case, the expression judgment or final order cannot cover a preliminary or interlocutory order made on a preliminary objection (such as want of sanction u/s 197, Code of Criminal Procedure ).

This authority, therefore, has got no application as it is an independent application u/s 210 which gives right to a person to have the proceedings on a complaint stayed because of the fact that there is a similar matter being investigated by the police.

The fourth authority is Mohammad Arnin Brothers Ltd. and Ors. v. The Dominion of India and Ors. AIR 1950 FC 77. According to this Authority;

The test for determining the finality of an order is, whether the judgment or order finally disposed of the rights of the parties. The finality must be a finality in relation to the suit. The fact that the order decides an important and even a vital issue is by itself not material, unless the decision puts an end to the suit.

This authority will also not be applicable because in the instant case the point involved is the decision under an independent provision, like Section 210, which gives right to a person to have the proceedings on a complaint stayed.

The fifth is Tarapore and Co. Vs. V/O Tractors Export, Moscow and Another, It also lays down a similar principle and says: "The order is final within the meaning of Article 133 of the Constitution, u/s 109 of the CPC or u/s 205 of the Government of India Act, 1935, if it amounts to final decision on the rights of the parties in dispute in the suit or proceeding, if after the order is made the suit or proceeding still remains to be tried and the rights in dispute have been determined the order is interlocutory."

The further authority is Savitri Devi Vs. Rajul Devi and Others, It is also an authority under Article 133(1) of the Constitution of India and it also says:

An order of the High Court in appeal reversing the order of the trial court recording a compromise is neither a judgment nor final order within the meaning of those terms in Article 133 of the Constitution. The order is interlocutory order.

The next is Madhu Limaye and Anr. v. Ved Murti and Ors. AIR 1971 S.C. 2481. This authority does not assist the learned Counsel for the Respondent because it was a case u/s 117(3) whereby the Magistrate had called for interim security from the Petitioners without starting the inquiry into the truth of the information and there is nothing whether it was an interlocutory order or a final order, but the Court held that the order of the Magistrate was bad.

The authority, Mohan Lal Magan Lal Thacker Vs. State of Gujarat, also does not assist the learned Counsel for the Respondent because this authority says that the order passed by the High Court in revision was a final order within the meaning of Section 134(1)(c). The controversy between the parties as to whether the complaint in respect of offences under Sections 467 and 468 read with Section 114 Penal Code, was justified or not was disposed of by the order of dismissal and the proceeding regarding that question was finally decided. The finality of that order was not to be judged by co-relating that order with the controversy in the complaint, viz., whether the Appellant had committed the offence charged against him therein. The fact that that controversy still remained alive was irrelevant. This authority in a way helps the Petitioner.

On the contrary the learned Counsel for the Petitioners has also cited a few authorities to canvass his point that the order passed by the learned Magistrate dismissing his application u/s 210 of the Code is a final order in so far as that application is concerned.

The first authority is The German Democratic Republic Vs. The Dynamic Industrial Undertaking Ltd., where the relief asked for by the Defendant in the notice of motion was dismissal of the suit in limine on the ground of immunity of the Defendant as a foreign sovereign State under International Law, the order rejecting the prayer in dismissing the notice of motion is not an interlocutory order but final order.

The second authority is Mohd. Mohmood Hasan Khan Vs. Government of Uttar Pradesh, This authority says:

In order to make an order a final order three conditions must be satisfied, namely: (1) that it should not be an interlocutory order; (2) that even though it is an order which disposes of the proceedings before a court finally, it should not be an order which leaves the original proceedings in the Court below alive and (3) that there should be a final determination of the rights of the parties or the order must be of its own force affect the rights of the parties.

The third authority is The The State of Orissa Vs. Madan Gopal Rungta, It says that with the passing of the order by the High Court the applications of the Respondents were completely disposed of and as the directions embodied the final order passed by the High Court an appeal against the order to the Supreme Court was maintainable. The fact that the operation of the order was limited to three months or a week after the filing of the intended suit did not prevent the order being final.

The fourth authority Bhagwan Singh and Another Vs. Chief Settlement Commissioner Punjab, Jullundur, also says that finality of an order dismissing a writ petition in limine depends on whether the controrversy ended before the High Court and not on whether it is finally over between the parties. All such dismissal orders hence will be final unless the dismissal has been for other remedy being open.

Therefore, what follows from the aforesaid authorities cited by the learned Counsel for the Respondent as also by the Petitioners is that interlocutory order is an order by way of an aid to the proper adjudication of the claim or dispute arising in the suit itself, e.g. orders by way of appointment of receiver, injunction, issue of commission for examination of witnesses, discovery, inspection, etc. It is the relief asked for and the order made thereon which determines whether a particular order is or is not an interlocutory order. In the instant case it would have been noticed that Section 210 empowers the court to stay the proceedings initiated on the basis of a complaint when there is investigation going on for the same offence against the same party on a report to the police. The object of this section is not to harass a person twice as also not to authorise a person to vindicate his honour when the case is being investigated by the police and it may ultimately prove to be false or unfounded. Therefore, in order to check the abuse that a private party may try to vindicate his honour by falsely implicating a person on the basis of a complaint for the same offence which is being investigated by the police this section to stay the proceedings on the basis of the complaint has been enacted. The dismissal, in these circumstances, of an application u/s 210 which is altogether an independent action, amounts to adjudication of the case finally in so far as the relief for stay is concerned. It is not a relief in the same cause because it is a relief sought by an independent application and which has been refused to them.

It has been argued by the learned Counsel for the Respondent that the application has been dismissed as being not properly presented and, therefore the Petitioners could file a fresh application. That is true that they can file a fresh application also, but, the question is whether the dismissal of this application amounts to a final order being passed, and to this my answer is in the affirmative. The reading of Section 210 makes it amply clear that it is not necessary that an application must be moved by a party. The section itself makes it incumbent on the Magistrate if it comes to his notice that a case for the same offence against the same persons is being investigated by the police he must stay the further proceedings. He can have that knowledge through any source, even on his personal information without any application being moved by any party. He can stay the proceedings the moment he learns that the case is being investigated by the police also. In the instant case the learned Magistrate even though it had been brought to his notice orally before the formal application u/s 210 was moved that the case is being investigated by the police also but he did not stay the proceedings, as the record shows. He has completed the preliminary enquiry and has ordered the issue of warrants of arrest to the Petitioners for their appearance in the court. The Magistrate, therefore, has really violated the mandatory provisions of Section 210 by not staying the proceedings when he was aware that the case was also being investigated by the police. Therefore, in these circumstances the authorities cited by the learened counsel for the Respondent which are mostly under Article 133 and 136 of the Constitution of India, are not at all applicable to the facts of the present case. I therefore, allow this petition and quash the order passed by the learned Magistrate dismissing the application. The application shall be placed before the learned Magistrate and he shall pass appropriate orders on the same in accordance with law.