Jitendra Sorari & Others vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

These are two connected criminal revisions, which are preferred by the respective revisionists, who during the pendency of the Sessions Trial No. 153 of 2016 'State vs. Jitendra Sorari & Others and Sessions Trial No. 152 of 2016 'State vs. Manoj Kumar' had filed an application invoking Section 227 of the Cr.P.C. being application paper no. 10kha dated 06.12.2016 by Jitendra Sorari and application paper no. 9kha dated 06.12.2016 as filed by Jodh Ram Joshi seeking a discharge from participation of the aforesaid Sessions Trial, which was being tried by Sessions Court for commission of an offence under Section 304, 330, 348 and 34 IPC and an alternate charge, which has been imposed the revisionists.

By the order impugned dated 15.02.2019 the Court of First Additional Sessions Judge/Udham Singh Nagar has rejected the application for discharge. It is this order, which has been put to challenge in the present revision invoking Section 397 of Cr.P.C., which is quoted hereunder:

"397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,-recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

If delicacies of the provision contained under Section 397 is taken into consideration, the propriety of exercising the revisional powers by the High Court or for any Sessions Judge, where it widens the scope of examining the records on its merits, it has always laid down a precaution that it is to be a record of any proceedings before the inferior court, this Court is of the view that the legislature when it uses the word "proceedings before an inferior court", which could be made as subject matter of revision before the superior Court exercising the powers under Section 397 and particularly the High Court under Section 401 also, there has had to be a proceeding decided, that means an order impugned in criminal revision, which was adjudicating or determining the right of the parties or a merits of the proceedings adjudicating a list.

The nature of order dated 15.02.2019 of rejecting the application under Section 227 of Cr.P.C. is a denial by Court to discharge the accused person and this denial to discharge will not amount to having any blend of adjudication effecting a decision on merits of the matter because as a consequence thereto, the procedure which would follow is that of the framing of a charge. It is at that stage the revisionist could always be able to prove his innocence and established the same while participating in the trial. If at all the revisionist contends himself to be aggrieved by an order rejecting the discharge application under Section 227, this Court is of the view that in the light of the judgment of the Hon'ble Apex Court, which has been referred by the learned Government Advocate in their counter affidavit filed in Criminal Revision No. 123 of 2019, it has been held by the Hon'ble Apex Court, that as far as the order resulting to a rejection of a discharge the same would not be revisable under Section 397 of the Cr.P.C.

In response to it, learned counsel for the revisionists have argued that this aspect pertaining to the tenability of the proceedings by way of a revision against the rejection of an application of discharge that has been a rival bone of contention in various judgments as laid down by the Hon'ble Apex Court as to what would be the scope of challenge to the order of rejection of the application for discharge in a revisional proceedings.

In one of the judgments on which the reliance has been placed by the learned counsel for the revisionists is a judgment as reported in 2018 (16) SCC 299 'Asian Resurfacing of Road Agency vs. Central Bureau of Investigation'. In this matter the scope of interference by the High Courts, which was dealt with by the Hon'ble Apex Court was from the view point that when the proceedings was made as subject matter of consideration by invocation of constitutional supervisory jurisdiction of the Court against the orders passed by the Sub-Ordinate Courts, i.e. by exercising powers under Article 227 or 226 of the Constitution may it be even against an interlocutory order also, this Court is of the opinion that as far as the scope of interference as against the interlocutory orders may it have a scope of interference when the Courts is exercising its extraordinary powers under Article 226 and 227 of the Constitution of India or at the most if it could be stretched when it is exercising the powers under Section 482 of Cr.P.C, but the powers under Article 226 or 227 or those as contained under Section 482 cannot be read in semblance with the provisions contained under Section 397 of Cr.P.C. because it absolutely deprecates the inception of the proceeding by way of a revision as against the orders, which are not deciding the lis between the parties or an order, which does not determine any liability or from fixing any liability as a consequence of the order under challenge in revision. The ambit and scope under Section 397 is altogether limited in its application as provided under Section 397(2) of Cr.P.C.

In the present revision since the challenge is given to the impugned order dated 15.02.2016 rejecting the application for discharge under Section 227 of the Cr.P.C., looking to its nature and looking to its prima-facie consideration within the scope provided under Section 227 of the Cr.P.C., this will not amount to be a final determination of a right or a liability and hence the bar of sub-section (2) of Section 397 will come into play and if at all the present revisionists contends themselves to be aggrieved against the order rejecting the discharge, he may have his recourse available under the provisions contained under the constitutional mandate or under the Cr.P.C., this Court is of the view but as far as the challenge being given to the impugned order dated 15.02.2016 rejecting the application under Section 227 of Cr.P.C. in the criminal revision under Section 397, this Court is of the view that the bar of sub-section (2) of Section 397 will always come into play and the revision against the rejection of Section 227 application declining to discharge the accused person from being tried for the offence will fall to be within the scope of judicial revision, which is permissible under Section 397 of Cr.P.C.

Consequently, this Court is of the view that as against the order of rejection of Section 227 application, it will amount to be an interlocutory order, because it has not resulted into culmination of any proceedings or determining the right or liability of a person against whom the order is passed and as such since it is not an adjudication of the proceedings and since it is an order of interlocutory nature the bar of sub-section (2) of Section 397 will come into play holding the revision to be not maintainable.

Accordingly, in view of the matter and for the aforesaid reasons, this Court declines to exercise its revisonal powers against the impugned order dated 15.02.2016, and while dismissing the revision, this Court is of the view that it will not create any embargo to the revisionists to have his other recourse before any competent forum under the available law against the impugned order under challenge in the revision.