D. Paskaly vs The State (S.P.E.) Hyderabad

Punnayya

In this revision the learned counsel for the petitioner contends that the proceedings on the file of the Special Judge, SPE and ACB cases in C.C. No. 40 of 1975 are vitiated for want of sanction u/s 197 Cr. P.C. The petitioner who was the first accused in C.C. No. 40 of 1975 filed Crl M P No. 185 of 1975 questioning the maintainability of the prosecution instituted against him on the ground that the sanction for his prosecution given by the Government of India is invalid as he is substantial holder of the post of selection grade Divisional Accountant in the Indian Audit and Accounts Department under the Controller Auditor-General of India is the authority competent to remove the petitioner from office. The learned Sessions Judge having examined the provisions of the Act and also the contentions raised before him, came to the conclusion that the contention of the petitioner is untenable and so holding, he dismissed the petition.

Aggrieved with the said order, the present revision case is filed.

Sri D. Satyanarayana the learned standing counsel for SPE and A.C.B. cases raised a preliminary objection that the revision case is not maintainable. According to him, Crl. M.P. filed by the petitioner is only an interlocutory petition and hence the order passed therein is only an interlocutory order and hence no revision can He u/s 397 (2) Cr. P.C. and even u/s 482 Cr. P.C.

As against this contention, Sri Shaik Shah Ali, the learned counsel for the petitioner, contends that as the matter goes to the very root of the case, it is not of interlocutory nature and the order passed in Crl. M.P.No. 185 of 1975 cannot be said to be an interlocutory order and the revision case is, therefore, maintainable. He also contends that this Court exercising its jurisdiction and power u/s 482 Cr. P.C. is empowered to examine the correctness or otherwise of the impugned order.

The question is whether the impugned order is interlocutory order or final order ? The Code has not provided any provision defining the interlocutory order. It is true that the petitioner questioned the validity of the sanction obtained by the prosecution. Hence it is clear that impugned order is passed in a matter arising during the course of criminal proceeding by way of preliminary objection. Merely because an important or even a vital question in the case is decided, it cannot be said that a final order is passed. Such proceedings are only of interlocutory nature. If once we come to the conclusion that the proceedings are of interlocutory nature and the order passed in such proceedings is only interlocutory order, then section 397(2) Cr. P.C. comes into play.

Sec. 397 (2) Cr. P.C. is provided in the new code in order to avoid unnecessary delay in disposing of the main matters on account of interlocutory proceedings. The provisions of section 397 (2) Cr. P.C. are mandatory. From the language of section 397 (2) Cr. P.C. it is clear that no revision can lie against any order passed in an interlocutory petition. Even the party who is aggrieved with the order passed in the interlocutory application is precluded from filing a petition under Sec. 482 Cr. P.C. questioning the correctness or legality of such an order. S. 482 Cr. P.C. is not intended to give benefit to the party who fails to secure relief under sec. 397(1) Cr. P.C. and who is debarred under S. 397 (2) Cr P.C. from preferring revision.

Similar question was considered by this court in Budaraju Seshagiri Rao and Others Vs. T.V. Sarma and Another, . In that case the facts are as follows :--

On 2-1-1973 Dr. Krisha Rao of Hyderabad married Kamala Devi at Swarna ; the place of Kamala Devi''s parents. They came to Hyderabad on 3-1-1975 for celebration of the ''nuptilal'' ceremony. On the morning of 6-1-75 the body of Dr. Krishna Rao was found in the Kommapur canal. It was suspected that Dr Krishna Rao had been murdered by poisoning, as he discovered that his bride was already pregnant by some one. There was investigation by the Crime Branch of the Criminal Investigation Department and a charge sheet was laid against 13 persons on 30-6-75 before the Judicial Second Class Magistrate, Chirala, for murder, conspiracy to comit murder, causing disappearance of evidence and fabrication of false evidence and conspiracy to cause disappearance of evidence and to fabricate false evidence.........Late Dr. Krishna Rao''s father Sri T.V. Sarma, and advocate was dissatisfied with the police charge sheet. Therefore he filed a complaint before the Additional Munsiff-Magistrate Chirala against 14 persons including the 13 against whom the police had filed a charge-sheet before the judicial second class magistrate. The Additional Munsiff Magistrate, examined the complainant on oath. He also examined some other witnesses produced by the complainant. Finally he took cognizance of the case against the 13 persons mentioned in the Police charge sheet and against the persons shown as A-5 to A-8, A-11, A-12, A-13, A-23, A-24 and A-25 in the complaint. He dismissed the complaint against A-9, A-14, A-26 A-27 and A-32 to A-34 u/s 203 Cr. P.C. He refused to take cognizance of the case against A-28 to A-31 on the ground that the sanction of the Government had not been obtained A-11, A-12, A-13, A-23 and P-24 have filed Cr. R.C. No. 646/1975 and A-5 to A-8 have filed. Cr. R.C. No. 655/1975 against the order of the learned Additional Munsif Magistrate taking cognizance of the case against them.

In that case, Sri T.V. Sarma the complainant, appeared in person and raised a preliminary objection that the provisions of section 397 (2) Cr. P.C. were a bar to the exercise of any revisional powers and that in the face of the express bar u/s 397 (2) the inherent powers of High court could nor also be invoked. Chinnappa Reddy J., accepted this contention. He observed that there appears to be considerable force in the preliminary objection of Sri T.V. Sarma. Sec. 397(2) bars exercises of revisional powers in relation to any interlocutory order passed in any appeal, enquiry trail or other proceeding. The object of sec. 397(2) is to prevent interference by revisional Courts with the smooth and even progress of enquiries, trials and other proceedings before inferior Courts. Under the Criminal Procedure Code of 1898, not only was there no such limitation on the powers of the revisional courts, sections 435 and 438 expressly provided for the suspension of the orders of inferior courts by the revisional courts pending the examination of the record by the revisional courts The new Code has made a clear departure from the old Code and has prohibited interference by revisional courts with proceedings in inferior courts at interlocutory stages Realising this position the petitioners invoked the jurisdiction of the High Court u/s 482 Cr. P.C. Section 482 merely preserves the inherent powers of the High Court. It is well established that the inherent powers of the High Court cannot be invoked so as to do an act which would conflict with an express provision of law or other general principles of Criminal Jurisdiction. Therefore the bar u/s 397(2) cannot be got over by the invocation of the inherent powers of the High Court u/s 482 Cr.P.C. In view of the aforesaid reasons and also the decision given by this court in the above cited case. I find no hesitation to hold that the contention of the petitioner cannot be accepted. Hence the revision case fails and is dismissed.