Julficar & Others vs State Of Uttarakhand

Sharad Kumar Sharma, J

These are three criminal revisions, though they are dealing with the different aspects and different facts and circumstances under which the respective impugned orders framing of charge have been passed in the aforesaid criminal revisions, they are the impugned orders by virtue of which a charge has been framed by the trial Courts in relation to the revisionists therein for the respective offences for which they have been charged to be tried by the trial Courts. The details of each of the Criminal Revisions are as under:-

(A)

In the Criminal Revision No. 135 of 2014 'Julficar vs. State of Uttarakhand' the revisionist has challenged the impugned order dated 31.03.2014 as passed by the Court of IVth Additional Sessions Judge, Haridwar, wherein, in the Sessions Trial No. 37 of 2014, State v. Afjal and others, wherein the Sessions Court has framed the charge as against the revisionist therein for commission of the offence under Section 216-A to be read with Section 34 of IPC which was arising out of Case Crime No. 247 of 2013, registered against the revisionist for offences under Section 395/397 IPC, at Thana Kotwali, Gang Nahar, Roorkee, District Haridwar.

The learned counsel for the revisionist had tried to address the Court for drawing an implications from the provisions as contained under Section 216A of the IPC, which reads as under:-

"[216A. Penalty for harbouring robbers or dacoits.- Whoever, knowing or having reason to believe that any persons are about to commit or have recently committed robbery or dacoity, harbours them or any of them, with the intention of facilitating the commission of such robbery or dacoity or of screening them or any of them from punishment, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Explanation.-For the purposes of this section it is immaterial whether the robbery or dacoity is intended to be committed, or has been committed, within or without [India].

Exception. - This provision does not extend to the case in which the harbour is by the husband or wife of the offender.]"

The argument, which has been addressed by the learned counsel for the revisionist is by stressing upon the use of word "harbouring" as it has been utilized by the Legislature in the said provision contained under Section 216A of IPC. If the provisions contained under Section 216A IPC is taken into consideration, the Legislature has wisely created the distinction in relation to as to at what stages, the penalty of harbouring a robber or dacoit is to be inferred in order to bring the offence under Section 216A IPC that in the aspect which is to be taken into consideration.

The word "harbouring" used herein, would be inclusive of harbouring, "prior to the commission of offence" and "subsequent to it also". This Court considers that the intention of the provisions contained under Section 216A of IPC is that the person who is accused of commission of an offence under Section 216A IPC has consciously with knowledge and intention and animus has acted at either of the stages of commission of offence in a manner to facilitating the protection/harbouring of the accused person involved in the commission of offence, and that too after knowing the fact that he is indulged in the commission of offence or has already committed an offence. It entails of an act to facilitate an accused person by providing him a shield or any of such facility, which may protect him to be prosecuted for the commission of the offence, for which, he is complained of. The stages, as provided under Section 216A IPC is inclusive of the stage ;

i. who has committed a robbery or dacoity, or

ii. has an intention to commit the offence in likelihood future

For the purposes of attributing an offence under Section 216A IPC, what is necessary is that a person is indulged in knowingly shielding a person from being tried for the offence and he has the knowledge, that the person, who is being shielded is indulged in the commission of the offence or he intends or has planned to commit an offence in future.

He has argued that the word "harbouring" has been dealt with under Section 212 of the IPC, which reads as under :-

"212. Harbouring offender.-Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment; if a capital offence.-shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; if punishable with imprisonment for life, or with imprisonment .-and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.

["Offence" in this section includes any act committed at any place out of [India], which, if committed in [India], would be punishable under any of the following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460; and every such act shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in [India].]

Exception. - This provision shall not extend to any case in which the harbour or concealment is by the husband or wife of the offender."

The basic intention as per the legislative scope of utilizing the word "harbouring" is that the basic element which is required is intention and with the knowledge of the act of shielding a person from being brought before the prosecution to be tried for commission of an offence. The knowledge is one of the necessary ingredient and a factor to charge a person for commission of an offence under Section 216A IPC. The implication of Section 216A IPC if it is to be read 212 of the IPC it could also be safely derived from its literal interpretation as given in the Oxford Dictionary, which defines the word "harbour" which in its adjective term, it means to keep or thought or shielding of a person accused of to secretly confined a person by way of a refuge or a shelter to protect him from being charged for an offence, for which, he has been alleged of in the complaint or F.I.R. registered against him having committed an offence.

The definition as given in the Oxford dictionary is quoted hereunder :-

"harbor (US harbor) n. a place on the coast where ships may moor in shelter, either naturally formed or artificially created. v. 1 keep (a thought or feeling) secretly in one's mind. 2 give a refuge or shelter to. -carry the germs of (a disease). 3 archaic moor in a harbor."

The argument of learned senior counsel for the revisionist is that if the set of allegations and the finding, which has been recorded in the impugned judgement as against the present revisionist, in the charge as framed therein it is to the effect that he was indulged in shielding his real brother Afjal and other accomplices who had recently committed the offence of dacoity and has given them a shelter. There are few ingredients as dealt with above, which stands satisfied for framing of charge:-

i. the existence of knowledge to the revisionist, of his brother and other accused person being involved in the commission of an offence of dacoity, which in itself falls to be within the ambit of Section 216A IPC, for which revisionist would be charged.

ii. the determination on which has been made by the learned Sessions Court is to the act of shielding of and illegally confinement of a person already involved in the commission of an offence after the appreciation of the evidence and, particularly by the narration of the allegation as made in the F.I.R. is yet again said to have been made out as against the revisionist on account of the confessional statement made by him in the proceedings.

The argument of the learned counsel for the revisionist is endeavoured after deriving certain extract with regard to the allegation, which has been levelled in the F.I.R., particularly, the references, which has been sought to be relied by him could be extracted from (Annexure-3) to the revision it is to the effect that as per the statements made in it, it was alleged that there was a probability of the accused person being taken to the Court for their participation in the Trial according to the revisionist it will not amount to be harbouring. The said extract of the F.I.R., which has been sought to be read, it only proposes that there to be a possibility of the accused person being taken to the Court because consciously the FIR uses the word "Shayad" or "Sambhavana" and hence, a positive inference cannot be drawn that the said stage of the accused person as argued being taken to the Court will not oust the implication of Section 216A IPC, until and unless, the stage at which it was tried to be imposed by framing a charge was settled by way of evidence to be adduced before the Trial Court after conducting the trial. The concept of probability is always subject establishment by evidence.

Secondly, he has submitted that if the role, which has been assigned to the revisionist in the F.I.R. itself is concerned, if that is taken into consideration in relation to for the commission of the offence, his submission is that the basis of charging the revisionist is on the ground of the confessional statement, made by him for commission of the offence under Section 216A IPC for illegally confining the accused person, who have already committed the offence of dacoity. His argument is that any confessional statement made by the revisionist that itself cannot be taken into consideration for the purposes of charging the revisionist for commission of offence under Section 216A IPC.

The narration made in the F.I.R. was the first expression of the incident given by the complainant i.e. Incharge Inspector Mr. Dinesh Singh. The said narration and allegation as levelled against the revisionist of his involvement for commission of the offence under Section 216A IPC, nowhere, it is reflected in the F.I.R. that his indulgment in the commission of the offence was made by extracting implications based upon the confessional statement recorded by the revisionist.

Apart from it, this Court is of the opinion that upto what extent the said confessional statement or charging the revisionist for commission of offence under Section 216A IPC, is concerned and its impact to be read in evidence for convicting a person under Section 216A IPC is concerned, i.e. to be taken into consideration at the stage when the Trial itself is conducted and its impact of confessional statement cannot be scrutinized at the stage when the revisionist has put a challenge to the order of framing of a charge in the exercise of power under Section 397 of the Cr.PC, I am of the view that the scope of Section 397 Cr.P.C. of revision cannot be placed in parlance in its interpretation to the scope of powers to be exercised under Section 482 Cr.P.C. where Court could exercise its inherent power, which is much wider in its application, than that of Revisional power, which itself has been limited in its application by legislature. Because under Section 397 Cr.PC has not been given an overriding effect, as that provided under Section 482 Cr.PC. The Hon'ble Apex Court in the case of Dipakbhai Jagdishchandra Patel v. State of Gujarat and Another, reported in 2019 SCC Online SC 588 has held as under:-

From the statement of the law contained in V.C. Shukla and others (supra), it becomes clear as to what constitutes confession and how if it does not constitute confession, it may still be an admission. Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is made in the course of investigation under the Cr.PC to a Police Officer, then, it will not be admissible under Section 162 of the Cr.PC as it clearly prohibits the use of statement made to a Police Officer under Section 161 of the Cr.PC except for the purpose which is mentioned therein. Statement given under Section 161, even if relevant, as it contains an admission, would not be admissible, though an admission falling short of a confession which may be made otherwise, may become substantive evidence.

A confession made to a Police Officer is clearly inadmissible. The statement relied on by respondent is dated 11.04.1996 and the appellant was arrested on 11.04.1996. This is pursuant to the FIR registered on 10.04.1996. The statement dated 11.04.1996 is made to a Police Officer. This is clear from the statement as also letter dated 10.08.1996 (Annexure R/6) produced by the respondent. It is clearly during the course of the investigation. Even if it does contain admissions by virtue of Section 162 and as interpreted by this Court in V.C. Shukla and others (supra), such admissions are clearly inadmissible.

If the statement made by the appellant on 11.04.1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani Alias Pappu Kalani (supra)becomes applicable.

We also notice the following statement in judgment rendered by Bench of seven learned Judges in Haricharan Kurmi v. Sate of Bihar17:

"As a result of the provisions contained in S.30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S.30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.

Thus, the confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt."

The excerpts of the F.I.R., which is being sought to be extracted and to be attracted, which is sought to be scrutinized by the revisionist in order to give a challenge to the "charge", framed as against the revisionist for commission of the offence under Section 216A IPC is to the effect that if the narration of an allegation in the F.I.R. is considered, so far it relates to the allegations against present revisionist, it cannot be said that there was a direct indulgment as against the present revisionist is concerned for implicating him for commission of an offence under Section 216A IPC.

This Court is hesitant to accept this contention of the revisionist, the same is not accepted by this Court for the reason being that if the F.I.R. itself is taken into consideration in its totality, the aspect which stands established is to the effect that the Afjal, who was one of the accused named for commission of the offence, is the real brother of the present revisionist and providing him a shelter or shielding a person who was involved in the commission of offence is being prohibited by virtue of the provisions contained under Section 216A IPC. In such an eventuality, the possibility of commission of an offence under Section 216A IPC, by the revisionist cannot be ruled out looking to the affinity, as "blood is always thicker than water", thus the possibility of shelter or harbouring was more grievously present.

Learned counsel for the revisionist submits that if yet another set of allegations as levelled in the F.I.R. is taken into consideration with regard to the role of accused person, i.e. revisionist, herein, it was only of allegation of making an attempt to enable the accused person to surrender and for the said purpose, he was being found to have provided an assistance by the revisionist, he submits that it may not be taken as to be providing shield or harbouring hence it will not bring the offence under Section 216A IPC because, according to the argument extended by the learned counsel for the revisionist is that there has had to be a deliberate and a positive attempt after the knowledge attributed to it to protect exposure from the police person for making an attempt to shield the person for being exposed to trial.

He submits that when the FIR itself has observed that the attempt which was made by the revisionist was to enable the accused person to surrender and that in itself would mean that it was not an attempt to shelter but rather facilitating a fair and speedily trial, and would not fall to be an act covered under Section 216A of IPC. The Court is of the view that the said argument is not acceptable at the stage of challenging the order of charge because, yet again, the determination of the fact as to whether it was an attempt made by revisionist of shelter or it was an attempt to enable the accused person to surrender is yet again a subject matter which has to be scrutinized by the Court after appreciation of the evidence during the course of the trial.

The artificial surgery, which the counsel for the revisionist has attempted to make, is by way of dis-section to the provisions contained under Sections 397 and 482 of the Cr.P.C. The scope and implication of Section 397 of the Cr.P.C. is required to be considered by this Court and hence, a reference of the same is made by quoting the said provisions before its analysis, which is referred hereinbelow :

"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."

Section 397 of the Cr.P.C., it gives a power to the High Court or the Sessions Court as the case may be to examine the records of the proceedings of the Courts subordinate to it, it is limited to the extent of scrutinizing the "correctness, legality or propriety of finding or sentence", meaning thereby, the limitation imposed under Section 397 Cr.P.C. was only limited in its application to correct the proceedings or orders of the Subordinate Court in order to put it in its right order so that it may not ultimately amount to or lead to an abuse of process or result into unnecessary trail of a person concerned. The provisions contained under Section 397 Cr.P.C. that is why it also grants the power to the revisional Court to take a suo moto cognizance also for calling upon the records of the Court below whenever it has been brought to the knowledge of there being a procedural flaw with regard to the order under scrutiny in Revision with regard to the correctness, legality or propriety or any finding recorded thereto or to the proceedings before subordinate Court.

While on the contrary, the legislative intent of powers which has been contained under Section 482 Cr.P.C. having been vested with the High Court is to be utilized as a saving clause to be utilized as procedural and inherent refuge, which is to be exercised by the High Court by bringing the said part as to be an inherent power and which is not circumscribed or limited by any procedural aspect contemplated under the Code of Criminal Procedure and that is why, the powers under Section 482 have been given an over-riding effect to any of the procedural provisionssince having been referred therein by way of a non obstente clause, where it has provided that no procedural law contemplated under the Cr.P.C. would override the provisions contained under Section 482 Cr.P.C. Section 482 of the Cr.P.C. reads as under :-

"482. Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

The counsel for the revisionist had sought scrutiny of the impugned order of framing of a charge, in a fashion as if, the scrutiny was being made by the High Court while exercising its inherent power under Section 482 of Cr.PC, I am of the view that it was in order to scrutinize the orders of the Court below, while exercising the inherent power under Section 482 Cr.PC. The Court is apprehensive to accept the said argument and based on the said argument in the context as it has been extended, counsel for the revisionist has made reference to the judgment of the Hon'ble Apex Court as reported in 2019 SCC OnLine 588, Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and another, particularly, the learned counsel for the revisionist has made reference to the finding, which has been dealt with in the said judgment as reported in para 33 and 34 of the said judgment. Para 33 and 34 of the said judgment read as under :-

" 33. A Full Court of this Court, in the decision in M.P. Sharma and others v. Satish Chandra, Distt. Magistrate, Delhi and others, considered the scope of the expression contained in Article 20(3) of the Constitution of India which mandates that no person accused of any 9 AIR 1952 SC 354 10 AIR 1976 SC 1167 11 AIR 1954 SC 300 offence shall be compelled to be a witness against himself:

"Broadly stated the guarantee in Art.20(3) is against "testimonial compulsion". But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness-stand. The protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which is the normal course may result in prosecution.

Considered in this light, the guarantee under Article 20(3) would be available to person against whom A First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which ae reasonable likely to support a prosecution against them."

(Emphasis supplied)

In State of Bombay v. Kathi Kalu Oghad, a Bench of 11 learned Judges of this Court had an occasion to consider the true width of the expression "person accused of an offence". Speaking on behalf of the majority, Sinha, C.J., held as follows:

"14. In this connection the question was raised before us that in order to bring the case within the prohibition of clause (3) of Article 20, it is not necessary that the statement should have been made by the accused person at a time when he fulfilled that character; it is enough that he should have been an accused person at the time when the statement was sought to be proved in court, even though he may not have been an accused person at the time he had made that statement. The correctness 12 AIR 1961 SC 1808 of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagirv. State of Madras [(1960) 3 SCR 116] was questioned because it was said that it ran counter to the observations of the Full Court in Sharma case [(1954) SCR 1077].In the Full Court decision of this Court this question did not directly arise; nor was it decided. On the other hand, this Court, in Sharma case [(1954) SCR 1077] held that the protection under Article 20(3) of the Constitution is available to a person against whom a formal accusation had been levelled, inasmuch as a First Information Report had been lodged against him. Sharma case [(1954) SCR 1077] therefore, did not decide anything to the contrary of what this Court said in Mohamed Dastagir v. State of Madras [(1960) 3 SCR 116]. The latter decision in our opinion lays down the law correctly.

In order to bring the evidence within the inhibitions of clause (3) of Article 20 it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. ..."

(Emphasis supplied)"

With all reverence at my command and with due regards to the aforesaid ratio of the Hon'ble Apex Court, with regard to its exercise of powers in scrutinizing the orders of framing of charge, this Court is not in agreement with the argument of the counsel for the revisionist the manner in which, the judgment had been sought to be interpreted and applied because an attempt has been made to read the said judgment, which was rendered by the Hon'ble Apex Court, where the Subordinate Court's order which was rendered by the High Court which was under challenge was in exercise of powers under Section 482 of the Cr.P.C., and hence, as it has already been observed by this Court that the counsel cannot be permitted to deceit a provision in its applicability by bringing the provisions contained under Section 397 Cr.P.C. as if to be in parlance to the provisions contained under Section 482 Cr.P.C. because the same would run contrary in its applicability of one another.

The Hon'ble Apex Court in the judgment reported in 2019 (3) Supreme 210, Pallavi Vs. State of U.T. Chandigarh and others, as it has already been dealt with in the above paragraph of the judgment, it was determining the scope of interference as against the order of framing of a charge and the said judgment in para 7, which reads as under:-

"7. When the Judicial Magistrate has, based on the chargesheet and on the materials filed along with the chargesheet, satisfied himself, order of framing of charge against respondents no.2 and 3. At the stage of framing of charge, the court is concerned only with the aspect that there is prima facie materials presuming that the accused has committed the offence. At the initial stage the court is not called upon to examine the sufficiency or otherwise of the materials produced by the prosecution and also to examine whether the same are sufficient to sustain the conviction of the accused thereon. The learned Sessions Judge, in our view ought not to have gone into the merits of the materials and erred in setting aside the order of the Judicial Magistrate framing charge against accused."

The said judgement has held that the Revisional Court has got a very limited jurisdiction while appreciating the evidence, which constituted to be the foundation for the Court for framing of the charge. The said judgment was dealing with the scope, while exercising the powers under Section 397 of the Cr.P.C., whereas, on the contrary, the judgment, which has been sought to be referred to by the counsel for the revisionist was when the charge, which has been framed by the Court was being dealt with by the Subordinate Court in the exercise of its inherent powers under Section 482 Cr.P.C, Hence, the said judgment, Dipakbhai Jagdishchandra Patel (Supra), on which, reliance has been placed by the learned counsel for the revisionist, particularly, as that contained in para 2, was dealing with the orders passed under Section 482 Cr.P.C. and, particularly, when the jurisdiction of Revisional Court has been circumscribed and which restrains the scrutinization of the evidence.

"2. The petition under Section 482 Cr.PC. was filed challenging the complaint and the Order passed by the Sessions Court rejecting the request of the appellant to discharge him of the offences under Sections 489B and 489C of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC' for short)."

The said judgment cannot be read as a substitute to ratio as propounded by the Hon'ble Apex Court, while scrutinizing the orders of framing of a charge in the exercise of the Revisional power. Hence, the said judgment is of no help for the counsel for the revisionist.

Even otherwise also, as per the judgment rendered by the Hon'ble Apex Court in 2019 (3) Supreme 210, Pallavi Vs. State of U.T. Chandigarh and others, which has already been referred above, it has held that as against the framing of charge under Section 228, the scope of its exercise of power by the Revisional Court as the person has already charged by the Sessions Court or the Trial Court as the case may be, the said material could only be scrutinized independently after considering the evidence, which is to be led by the parties during the course of the trial and not by the revisional Courts.

Hence, in that view of the matter, the argument as extended by the learned counsel for the revisionist that the charge as framed therein as against the present revisionist does not satisfy the provisions contained under Section 216A IPC, in the absence of there being any element of harbouring and, particularly, in the circumstances as has already been dealt above, this Court is not in agreement with the arguments as extended by the revisionist and his counsel because the excerpts of the F.I.R. with regard to the stage, at which, the allegations have been made against the revisionist cannot be extracted to oust the charge framed under Section 216A IPC.

Consequently, as far as Criminal Revision No. 135 of 2014, Julficar v. State of Uttarakhand is concerned that stands dismissed.

(B)

In the connected revision being Criminal Revision No.

102 of 2014 'Ashok Kumar vs. State of Uttarakhand' the revisionist has given a challenge to the impugned orders dated 02.04.2014 and 26.02.2013, as passed by the learned Special Judge SC/ST Dehradun in S.T. No. 9 of 2011 'State vs. Tariq and others', wherein, the two orders have been put to challenge, i.e. order dated 02.04.2014 as against the framing of the charge and the order dated 26.02.2013, where the order has been passed on an application under Section 319 of Cr.P.C. has been put to challenge.

The precise argument of the learned counsel for the revisionist is that for framing of charge for the commission of offence under Sections 307, 504, 506 I.P.C. and Section 3 (1) (10) of S.C. & S.T. Act, he submits that if the statement of Mr. Gajendra Singh Diwakar, who had recorded his statement before the Trial Court as PW2 is taken into consideration and particularly, a reference has been made to para 2 of it, he submits that the set of allegations pertaining to the using of the derogatory and prohibited words while addressing the complainant, i.e. use of word "Dhobi" could only be made applicable, only when the offence, as such, is brought within the ambit of Section 3 of the S.C. & S.T. Act of 1989. He submits that the charge as framed against him for the commission of an offence under Section 3 of the S.C. & S.T. Act, would not be made out because the provision itself provides that the offence under Section 3 of the Act would only be made out as against any other group of superior class of persons, except the person belonging to the S.C. & S.T. i.e. the same community of the complainant.

In support of his contention, he submits that he belongs to the scheduled castes and in relation thereto, he has made reference to the caste certificate, which was issued way back on 27.07.1990, by State of U.P., i.e. prior to the reorganization of the State, which has observed that he belongs to the caste "Balmiki" and he submits that if he belongs to the said caste, he could not have been charged for the offence under Section 3 of the Act.

This Court is not in agreement with the argument as extended by the learned counsel for the revisionist for the reason being that reservation as per the constitutional mandate is a State subject as provided under Article 341 and 342 of the Constitution of India and after the creation of the State of Uttarakhand, the fact as to whether the caste to which, the revisionist belongs is recognized as a scheduled castes in the State of Uttarakhand is yet to be affirmed by the revisionist by placing a validly issued certificate by the competent authority of the State of Uttarakhand, after its bifurcation. The certificate of State of U.P. issued on 27.07.1990 cannot be borrowed to be utilized to show that he was belonging to a recognized caste as scheduled castes recognized within the territorial domain of the State of Uttarakhand.

Apart from it, there is no such plea raised by the revisionist in the Memo of Revision itself to the effect that the said certificate as issued in his favour way back on 27.07.1990, still subsists and is valid and in pursuance to the said certificate or thereafter, no other certificate in relation thereto certifying that the revisionist belongs to the schedule castes has been placed on record which has been issued in his favour by the State of Uttarakhand recognizing him as Schedule Caste in the State.

Apart from it, the plea raised in para 12 by the revisionist to the effect, that he belongs to the scheduled castes, and hence, he would be protected from being charged for the offence under Section 3 of the Act, the said para has been sworn on the basis of the records, which he tries to derive that he belongs to the scheduled castes but, this Court in the absence of any valid certificate having been issued by the State after the reorganization of the State, at this stage, is not in a position to determine him as to be scheduled caste in order to attract the ouster clause under Section 3 of the Act that the offence under Section 3 could not be made out on the ground that he himself belongs to the scheduled castes.

While making reference to the statement of PW2 and, particularly, while referring to para 2 of the said statement, PW2 has specifically stated that while Tarique and Mustakin had abused the victim and had inflicted blows by an iron rod. Simultaneously, at the same point of time, the role of the revisionist is said to have is that he appeared at the place where the incident has taken place on his scooter and he was alleged with the act to have inflicted blows by "khunkari" on the waist, neck, ear and head of the victim. At least, prima facie, in view of the said statement of PW2 and even as per the arguments extended by the counsel for the revisionist himself, if at all, the offence could be said to have been made out and as formulated to be the part of the charge could be only for an offence under Section 307 I.P.C.

Since the argument of the learned counsel for the revisionist is also from the view point, as there is no allegation with regard to the commission of an offence under Sections 504 and 506 I.P.C. in relation to any act of criminal intimidation because as per the statement of PW2, he has not stated that there was any outrageous act or statement made by the revisionist to bring him within the ambit of offence under Sections 504 and 506 IPC and on that premise alleging that the said charge too is not made out is not accepted by the Court for the reason being that the same being a statement which was recorded during the course of trial and the said statement is yet to be appreciated by the Trial Court when the Trial Court itself is conducted in relation to the offences, for which, the revisionist has been charged of only after appreciating the evidence.

In that view of the matter in the absence of there being any substantial case made out by the revisionist to ascertain that the charge as framed under Section 3 of the SC & ST Act and under Sections 504 and 506 of the IPC, in the absence of there being any document on record and in particularly in the absence of there being any pleading, the statement of PW2 cannot be extracted to be considered at this stage, which is yet subject to the trial to be appreciated, it cannot be extracted to question the charge itself as far as the commission of the aforesaid offences are concerned.

Hence, in view of the aforesaid, the argument extended by the learned counsel for the revisionist that he could not be charged for the offences by the impugned order dated 2nd April, 2014, is not accepted by this Court. Consequently, this Criminal Revision No.102 of 2014 'Ashok Kumar vs. State of Uttarakhand' too lacks merits and the same would stand dismissed.

(C)

In the third connected revision being Criminal Revision No. 358 of 2018, Lalit Mohan Goswami v. State of Uttarakahand. The revisionist has challenged the order dated 08.10.2018 as passed by the Special Judge, Anti Corruption/Sessions Judge, Nainital, in Special Sessions Trial No. 4 of 2017 'State vs Lalit Mohan Goswami', by means of which the discharge plea of the revisionist has been turned down and as a consequence thereto, it has resulted into framing of a charge for the commission of the offence under Section 7/13 (1) (d) to be read with Section 13 (2) of the Prevention of Corruption Act.

The orders, which has been put to challenge in the present revision are those of 08.10.2018, whereby the discharge of the revisionist for the commission of offence under Sections 7, 13(1)(d) to be read with Section 13(2) of the Prevention of Corruption Act, 1988, has been rejected and as a consequence thereto, a charge has been framed as against the present revisionist on the same day, wherein he has been charged for the commission of said offence on the grounds that for the purposes of getting the sale deed executed, he was induldged in collecting the illegal gratification, which was found to be received by him under the trap, which was held against him as it has been observed in the FIR, registered against the revisionist being Case Crime No. 2 of 2017, dated 12.07.2017, registered before Patwari Chowki, Pandey Gaon, Tehsil and District Nainital.

There are two fold arguments which has been raised by the learned counsel for the revisionist it is that the trap which was held against the revisionist on 12.07.2017 at about 11:55 a.m. and in which he was found that he was induldged in receiving the illegal gratification that itself will have no relevance for the reason being that the so-called trap or the incidence with regards to receiving of the illegal gratification though it has been made at 11.55 a.m. and the description of the currency note which was recovered from him was also shown to have been found from his possession. But still, he submits that the said trap and the reason for acceptance of the money and the motive behind it as to why he has received the money could not be correlated to be in relation to the sale deed, which was executed much prior in time i.e. dated 24.06.2017 and 12.07.2017.

This argument of the learned counsel for the revisionist to the effect that the sale deeds in relation to which he has alleged that he has accepted the illegal gratification at a subsequent stage will have no nexus with regards to the allegation to be in relation to the sale deed executed earlier, he cannot be charged for the offences under Sections 7, 13(1)(d) to be read with Section 13(2) of the Prevention of Corruption Act, 1988.

This argument of the learned counsel for the revisionist though it may have an implication at the stage of conduct of the trial and its ultimate consequence, but I am of the view that for the purposes of framing of a charge when an act of receiving the money was proved by the team or the members of the Trap Committee, who has conducted the trap on 12.07.2017 and having been found that the revisionist was found receiving the illegal gratification of Rs. 4,500/-, it would be a subject matter of trial as to whether the said trap and recovery made there from the revisionist by the trap team was a genuine trap or it was laid by the prosecution for the purposes of false implication of the present revisionist.

As far as the veracity of the trap and the recovery of the money which has been found from the possession of the revisionist that could be the subject matter of scrutiny and be settled only by the learned trial Court itself but it cannot be scrutinized by the Revisional Court by appreciating the evidence on record as to whether he was in fact actually induldged in accepting the money by way of illegal gratification, particularly, when prima facie the said fact stands established in view of the averments made in the FIR of the indulgement of the revisionist in the commission of the said offence.

The learned counsel for the revisionist has made a reference to the judgement as reported in 2015 (15) Supreme Court 629, T.K. Ramesh Kumar v. State through Police Inspector, Bangalore, wherein the proceedings which was drawn as against the appellant there, who had already convicted on the culmination of the trial for commission of offence under Sections 7, 13(1)(d) to be read with Section 13(2) of the Prevention of Corruption Act, 1988.

It was not a situation involved in the said case which was factually determining a case as against the framing of a charge based on the trap which was laid down in which the present revisionist has been trapped of having received the money illegally. It is not a case which was culminating as the consequences flowing from the receipt of money due to the laying of trap and hence this Court is of the view that since it was a proceeding which ultimately had convicted after culmination of the trial and there was no question involved in it with regards to effect of framing of a charge, this judgement is of no avail as far as the present revisionist is concerned, where the revisionist is challenging the impugned order dated 08.10.2018 by which the charge has been framed against him.

Even otherwise also, for the purposes of exercising the powers under Section 228 Cr.PC, this Court is of the view that the Sessions Court was supposed to determine and consider the materials before it, as to whether under the propriety of the case as developed by the prosecution in the FIR or under the given set of circumstances and the evidence on record whether the revisionist could be prima facie held to be responsible even for probable commission of offence under Sections 7, 13(1)(d) to be read with Section 13(2) of the Prevention of Corruption Act, 1988.

Since in the FIR, the theory of conduct of trap and illegal act of receiving bribe is an admitted fact by the revisionist, the only sanctity of it whether it was portraying a rightful indulgment of the revisionist for the commission of offence or not it would be subject matter to be scrutinized during the course of trial itself and it cannot be derived for the purposes of challenging the charge, which has been framed against him. Consequently, since there was enough material available before the learned trial Court for charging the revisionist for the commission of the offence aforesaid, the framing of charge cannot be re-scrutinized in the Revisional jurisdiction by re-appreciating the evidence and its sanctity for framing charge as against the revisionist.

Consequently, the Criminal Revision No. 358 of 2018, Lalit Mohan Goswami v. State of Uttarakhand lacks merits and the same is accordingly dismissed.

(D)

The wider issue which was argued by the parties was in relation to maintainability of revision against the order of framing of charge whether it is an interlocutory order or an intermediary order, to attract bar of Section 397(2) of Cr.PC.

Factually, the cases in question may be involving a different factual backdrop, under which it had been filed challenging the respective impugned orders by invoking the jurisdiction under Section 397 to be read with Section 401 of Cr.P.C. The preliminary issue, which has been primarily raised by the Government Advocate and which has been called upon for consideration before this court it was in relation to as to whether the revisional provisions contained under Section 397 to be read with Section 401 of Cr.P.C.; "as to whether as against the order of framing of a charge by invoking the provisions contained under Section 228 of Cr.P.C., whether the said order takes the shape of being an interlocutory order or it is a final adjudication in the shape of intermediary order, made by the respective Sessions Courts or the Trial Courts in order to make it revisable?".

The argument of the learned Government Advocate is that as far as the order framing of a charge is concerned, that will amount to be an interlocutory order because in fact it is not a determination of a right, which has been made by the Trial Court, but rather the Trial Court or the Sessions Court, which is dealing with the trial or the session trial, it only applies its mind after appreciation of the material and the evidence on record, as to whether a prima-facie case is made out as against the accused person facing the trial for the commission of the respective offences in order to formulate a charge for being tried by the respective Sessions Court or the Trial Court.

It is on this point that this Court has been called upon to determine as to whether the embargo of sub-section (2) of Section 397 will come into play and making the criminal revision as to be not tenable by treating the order framing of a charge under Section 228 as to be an interlocutory order.

Hence, at this stage of the judgement, this Court is answering the question about as to framing of a charge itself will be an interlocutory in order to attract sub-section (2) of Section 397, and about the tenability of a criminal revision as against the order of framing of a charge.

Before answering those questions, this Court feels it to be apt to observe that as far as the Revision No. 135 of 2014, Julficar v. State of Uttarakhand is concerned, the same has been admitted by the Coordinate Bench of this Court on 04.07.2014. The revision being Revision No. 102 of 2014, Ashok Kumar v. State of Uttarakhand, when it was argued at admission stage, this revision is yet to be admitted. As far as the Criminal Revision No. 358 of 2018, Lalit Mohan Goswami v. State of Uttarakhand is concerned, the said criminal revision has been entertained by this Court without there being any specific order passed on it of admitting the revision. Hence, at this stage when the learned Government Advocate has raised the question about the maintainability of the revision by treating the order impugned of framing of a charge as to be an interlocutory order, he has submitted that an order of framing of a charge as made by the Court by exercising its powers under Section 228, which is quoted hereunder:

"228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

would be an interlocutory order, hence the Criminal Revision would not lie under Section 397 of Cr.PC.

His argument is that the Trial Court or the Sessions Court, which exercises its powers under Section 228 of Cr.PC., its powers are limit, it has only to scrutinize the evidences or the documents on record in order to determine or summarize a triable question, which is required to be tried in relation to an offence for which the accused is facing trial, that question which has to be tried in relation to the accused facing the trial by the Sessions or the Trial Court. Even if the language of Section 228 itself is taken into consideration, the legislature has provided in its sub-section (1) that it is on the consideration of evidence and material on record and hearing the parties, Sessions Court or the Trial Court, after the presumption being drawn on appreciation of evidences only when it prima-facie derives as to whether under the given set of allegations mentioned in the FIR the offence is made out or not and only determination which has to be made by the Court trying an offence at the stage of framing of charge is as to whether the offence is triable or not.

Hence, it is submitted by the learned Government Advocate that once the Court is applying its mind on considering the evidence and material on record under the given set of circumstances of the case for the purposes of framing of a charge, that in itself will not amount to be an adjudication of right of an accused person facing the trial, which may have an adverse effect on the trial itself, or at least on the parties, when it is conducted by the Trial Court or the Sessions Court. Hence, his argument is from the view point that Section 228, may not be treated as to be a determination of a right of the accused facing trial in order to bring the order of framing of a charge as to be an interlocutory order to oust the jurisdiction of the revision under Section 397 to be read with Section 401 of Cr.P.C.

On the contrary, the argument of the learned counsel for the revisionists is that an order of framing a charge would be revisable for the reason being and logic behind is that as soon as the court is given the liberty under Section 397 of Cr.P.C. to appreciate an evidence, to apply its mind, to determine as to whether a certain set of allegations leveled against the person facing trial is made out for the commission of an offence of which he is said to be involved, that action in itself of the trial Court of determination of framing of a charge, is a positive application of mind as to whether the accused person facing trial is required to be tried for an offence therein. Meaning thereby, when by an act of Court if it is deciding the very destiny of imposition of trial on an accused, it would amount to be an order on merits imposing a trial to be faced by accused person, hence as per revisionist, it would be intermediary order.

In support of their contention, the learned counsel for the revisionists has placed reliance on a judgment which is the leading authority on the issue reported in 1977 (4) SCC 551 'Madhu Limaye vs. The State of Maharashtra', which still holds the field, where the three judges of the Hon'ble Apex Court while determining the revisional scope of interference as against the order of framing of a charge under the revisional jurisdiction or under the jurisdiction under Section 482 of Cr.P.C. where the High Courts exercises its inherent jurisdiction to scrutinize an order passed by the Sub-ordinate Court has dealt with as to what factors are to be satisfied that would amount to be an interlocutory order. It has held that interlocutory orders are those orders, which are not determining a right or the status of a person facing the proceedings these orders will amount to be an interlocutory orders, but as soon as any order and as it determines the liability of imposing a trial to be faced by the accused revisionists, it has held in its paragraph-5 of the said judgment that the order of framing of a charge as against an accused person would be held to be a determination made with regards to a liability of an accused person to face the trial. As it amounts to be prima facie determination required to be considered for making a person to face the trial, which has an effect of affecting the right of accused under trial.

Consequently, in view of the findings, which has been recorded in paragraph-5 and 10 of the said judgment of Madhu Limaye (supra), the Hon'ble Apex Court has held that an order of framing of a charge would amount to be a determination of a liability made and, hence, in view of paragraph-13 of the said judgment, which is quoted hereunder, the test laid down therein to determine whether an order is interlocutory or intermediary order, the parameters were that if on the objection of the accused person it succeeds on a challenge being given to the order of framing of a charge and it would have an ultimate effect of ending the proceedings of the trial itself or a vice versa it will amount to be an order determining a right hence would be an intermediary order, and hence, it cannot be taken as to be an interlocutory order, but it would amount to be an intermediary order and, hence, the bar of sub-section (2) of Section 397 of Cr.P.C. will not be attracted. Paragraph 5, 10 and 13 of the said judgment are quoted hereunder:

"5. The Sessions Judge rejected all these contentions and framed a charge against the appellant under section 500 of the Penal Code. The appellant, thereupon, challenged- the order of the Sessions Judge in the revision filed by him in the High Court. As already 'stated, without entering into the merits of any of the contentions raised by the appellant, it upheld the preliminary objection as to the maintainability of the revision application. Hence this appeal.

As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2), in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code. The High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code. even assuming. although not accepting, that invoking the revisional power of the High Court is impermissible.

In S. Kuppuswami Rao v. The King(1) Kania C. J., delivering the judgment of the Court has referred to some English decisions at pages 185 and 186. Lord Esher M. R. said in Salaman v. Warner:

"If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."

To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time, there was no bar like section 397 (2) was not a "final order" within the meaning of section 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words 'interlocutory order" occurring in section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by section 397(1). On such a 'strict interpretation only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the, 1898 Code. In what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies ? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River Wear Commissioners v. William Adamson(1) and R. M. D. Chamarbaugwalla v. The Union of India ( 2) that although the word occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order -pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course."

The Hon'ble Apex court in the aforesaid judgment of Madhu Limaye (supra), has yet again drawn his interferences from yet another authority, which has been reported in AIR 1957 SC 628, that is the judgment rendered in R. M. D. Chamarbaugwalla vs. The Union of India, wherein, an identical inference was drawn by the Hon'ble Apex Court while dealing with the other issues as held in the case of The River Wear Commissioners vs. William Adamson as reported in 1876-77 (2) AC 743, The Hon'ble Apex Court has held in the aforesaid authority that on a harmonious reading of the construction given to sub-section (2) of Section 397 of Cr.P.C., the bar of revision arising of it, it is not meant to be attracted in those cases and circumstances where an order under challenge in a revision takes the status of being an intermediary order and, hence, it has held that an order framing of a charge would not attract the restrictions of sub-section (2) of Section 397 of Cr.P.C. to make the revision not maintainable treating the same to be an interlocutory order. Because though being an order passed during a proceedings of case, yet it takes the shape of affecting a right or imposing a liability, yet it materially affects a right such orders are "intermediary orders", hence revision would lie.

Furthermore, in view of the judgment as rendered by the Hon'ble Apex Court yet again in a case as reported in 1977 (4) SCC 39 'State of Bihar vs. Ramesh Singh', the Hon'ble Apex Court in its para 5 has held as under:-

"5. In Nirmaljit Singh Hoon v. The State of West Bengal and an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose(2) where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."

The said judgment though may not have a direct nexus to the issue and the facts as involved in the present case, but the wider ratio which has been determined therein is with regards to as to what are the modalities to be adopted and necessary to be considered by the court trying with an offence for the purposes of interpreting the implications on expanse of Section 227 of Cr.P.C. and Section 228 of Cr.P.C. while exercising its power for discharge or for framing of charge as against the accused persons. The wider ratio and the distinction which is to be precautionary resorted to in the exercise of the two powers as given in the code of criminal procedure has been dealt in paragraph-5 of the judgment in the manner as to what would be the parameters and elements required to be considered for a discharge and for the purposes of the framing of a charge under Section 228 of Cr.P.C. The Hon'ble Apex Court has accordingly held that for the purposes of framing of a charge under Section 228 the element which is required to be considered by the Trial Court is as to whether there are sufficient material, which on being tried by the Trial Court will ultimately result into the culmination of the conviction of an accused person under Section 228 of Cr.P.C. Thus the very factor for consideration while framing of a charge, has an element of probable conviction on culmination of trial. It holds an opinion of the Court to go for trial to conclude for truth of an event complained of.

Meaning thereby, the element requires for framing of a charge under Section 228 of Cr.P.C. is when there is positive possibility of an accused person being convicted for an offence facing the trial after framing of a charge. Meaning thereby, the gravity of determination of a charge under Section 228 of Cr.P.C. happens to be of a wider implications and magnitude as compared to that of Section 227. As soon as the Hon'ble Apex Court in paragraph-5 of the said judgment State of Bihar v. Rakesh (supra), has held that framing of a charge would self-imbibe in it a probable possibility of conviction on culmination of a trial, then in these circumstances, an order of framing charge it will take the shape to be an intermediary order though having been passed during the pendency of the proceedings of the trial or the Sessions Trial and it will not take the shape of being an interlocutory order to attract a bar of sub-section (2) of Section 397 of Cr.P.C. Thus, this Court holds that as against order of framing of charge revision on criminal side, would be maintainable.

On another judgment of the Hon'ble Apex Court on which the reliance has been placed by the learned counsel for the revisionists is that as reported in 1980 (Supp) SCC 92 'V.C. Shukla vs. State though C.B.I.'. The Hon'ble Apex Court in the aforesaid judgment while attracting the bar of sub-section (2) of Section 397 of Cr.P.C. in order to make the revision not tenable as against the interlocutory order has laid down the wider ratio as propounded therein in its paragraph 5, 7, 23, 24, 27 and 47, which are quoted hereunder:

"5. It will be important to note that the word 'interlocutory order' used in this sub-section relates to various stages of the trial? namely, appeal, inquiry, trial or any other proceeding. The object seems to be to cutdown the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. So far as the Code of Criminal Procedure, 1973 is concerned, it has got a wide and diverse area of jurisdiction inasmuch as it regulates the procedure of trial not only of the large number of offences contained in the Indian Penal Code but also in other Acts and statutes which apply the Code of Criminal Procedure or which are statutes in pari material the Code. Having regard, therefore, to the very large ambit and range of the Code, the expression 'interlocutory order' would have to the given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. Fortunately, however, there are a few decisions which have interpreted the expression 'interlocutory order' as appearing in s. 397(2) of the Code. Before we come to the decisions, certain features may be noticed here. In the first place, the concept of appeal against interlocutory order seems to be by and large foreign to the scheme of the Code or for that matter the scheme of the b Code of Criminal Procedure right from 1872 uptodate. Appeal has been provided only against final orders and not against interlocutory orders. Instead of appeal, the Code of 1898 as also the Code of 1872 contained powers of revision which vested in the High Court to revise any order passed by a criminal court. In the previous Codes, the term 'interlocutory' was not used. Therefore, the revisional jurisdiction was wide enough to embrace within its scope any order whether interlocutory. intermediate or final. Secondly, by virtue of scores of decisions of the various High Courts in India and the Privy Council, it was well settled that the revisional jurisdiction possessed by the Sessions Judge and the High Court could be exercised only to example the legality or propriety of the order impugned and more particularly the Courts; were to interfere only if there was an error of law or procedure. Previous to the Code, the powers of revision enjoyed by the Sessions Judge or the District Magistrate for the Chief Judicial Magistrate through various amendments were rather limited whereas the power of High Court was wide and unlimited. Apart from the revisional power the High Court under the Code of 1898 possessed an inherent power to pass order ex debito justitiae in order to prevent abuse of the process of the court. This was a special power which was to be exercised by the High Court to meet a particular contingency not expressly provided for in the Code of Criminal Procedure. Even in the present Code, the inherent power of the court has been fully retained under sec. 482 which runs thus:-

"482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

Reading the observations made by this Court in the aforesaid case as a whole we are unable to agree with the argument of Mr. Mridul that this Court in any way disapproved the tests of a final order or interlocutory order accepted by the Federal Court in case of S. Kuppu swami Rao v. The King This Court took care to explain that in a situation with which the Judges were dealing in that particular case, it would 'not be proper to treat the order framing charges as an interlocutory order pure and simple. Even thought the order may be intermediate it could not be said to be final so as to bar the revisional jurisdiction of the High Court under s. 397(3) of the Code. We find ourselves in complete agreement with the exposition of the law by the learned Judges who decided the said case. We will deal with a broader and a wider aspect of the matter in a later part of our judgment when we deal with the scope and ambit of the Act. We might reiterate here even at the risk of repetition that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in s. 397(3) OF the Code would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts. If, therefore, the right of revision was to be barred, the pro vision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. The same, however, in our opinion, could not be said of the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest despatch and speediest disposal. Mr. Mridul further relied on a decision of this Court in the case of State of Karnataka v. L. Muniswamy & ors. and particularly on the following observations made by Chandrachud, J. as he then was:

"On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D. D. Ghadigaonkar and Century Spinning, & Manufacturing Co. v. State of Maharashtra a show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or no. there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the . A duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial."

Great stress was laid by the learned counsel for the appellant on the fact that the Court had observed that the stage of framing of charges was a very important matter because it affected a person's liberty substantially and, therefore, the Court should consider judicially whether the materials warrant framing of the charge. There can be absolutely no doubt regarding the correctness of the observations made by Chandrachud J. This decision, however, is no authority for holding that an order framing a charge is not an interlocutory order. In the aforesaid case, this Court was called upon to exercise its jurisdiction under s. 482 of the Code, that is to say, the inherent powers of the Court was invoked to quash the proceedings in order to prevent abuse of the process of the Court. The term 'interlocutory order' 7 appearing in s. 397 (2) of the Code did not arise for interpretation in that case. In these circumstances, therefore, we do not think that this case can be of any assistance to the appellant. Reference was also made to a decision of this Court in the case of Parmeshwari Devi v. State & Anr. This case also depends on different facts and relates to the circumstances under which a summons could be issued under s. 94(1) of the Code of 1898. In passing, however, this Court observed:-

"The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does 'not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights."

Although this Court said that the Code does not define an interlocutory order, it does not include an intermediate order made during the preliminary stages, of an inquiry or trial. This Court laid greater stress on the fact that an order which was directed against a person who was not a party to the inquiry or trial and had, therefore, no opportunity to place his point of view could not be bound by any order passed against him. This appears to be the ratio of that case. Reliance was also placed on a decision of this Court in the case of Century Spinning & Manufacturing Co. Ltd. v. The State of Maharashtra in order to urge that the stag, of framing of charges is a matter of moment and an order framing a charge could not be termed as an interlocutory order. In the first place, the judgment of the aforesaid case was rendered before the Code of 1973 was passed and, therefore, the interpretation of interlocutory order as contained in s. 397 (2) of the Code could not have arisen for consideration. Secondly, the decision was given on the scope and ambit of s. 251A of the Code of 1898 AS amended by the Act of 1958. Dealing with the scope of sub- sections (2) and (3) of s.251A of the Code of 1898, this Court observed as follows:

"The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the of offence by the accused is not supportable either on the, plain language of the section or on its judicial interpretation or on any other recognised principal of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."

We entirely agree with the approach indicated by Sastri, C.J. and which is also binding on us. Let us see what is the effect of interpreting the non obstante clause according to the test laid down by the decision, referred to above, and particularly the observations of Sastri C. J. Let us for the time being forget the provisions of s. 397(2) of the Code or the- interpretation put by this Court on the term 'interlocutory order' as appearing in the Code because the decisions were based purely on the interpretation of the provisions of the Code. We have, therefore, first to determine the natural meaning of the expression interlocutory order'. To begin with, in order to construe the term 'interlocutory', it has to be construed in contra- distinction to or in contrast with a final order. We are fortified by a passage appearing in The Supreme Court Practice, 1976 (Vol. I p. 853) where it is said that an interlocutory order is to be contrasted with a final order, referring to the decision of Salaman v. Warner. In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. That this is so was pointed out by Untwalia J, speaking for the Court in the case of Madhu Limaye v. State of Maharashtra, (supra) as follows:

"Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'."

Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'. Now, let us see how this term has been defined in the Dictionaries and the text books. In Webster's Third International Dictionary (Vol. II, p. 1170) the expression 'interlocutory order' has been defined thus:

"not final or definitive; made or done during the progress of an action; INTERMEDIATE PROVISIONAL". Stroud's Judicial Dictionary (Fourth Edition, Vol. 3, p. 1410) defines the interlocutory order thus: - " 'Interlocutory order' (Judicature Act 1873 (c.66), s. 25(8) was not confined to an order made between writ and final judgment, but means an order other than final judgment."

Thus, according to Stroud, interlocutory order means an order other than a final judgment. This was the view taken in the case of Smith v. Cowell and followed in Manchester & Liverpool Bank v. Parkinson. Similarly, the term 'final order' has been defined in volume 2 of the same Dictionary (p.1037) thus:

"The judgment of a Divisional Court on an appeal from a county court in an interpleader issue, was a 'final order" within the old R.S., Ord. 58, r. 3 (Hughes v. Little, 18 Q.B.D. 32); so was an order on further consideration (Cummins v. Herron, 4 Ch. D. 787); unless action was not thereby concluded.. But an order under the old R.S.C., ord. 25, r. 3, dismissing an action on a point of law raised by the pleadings was not 'final" within the old Ord. 58, r. 3, because had the decisions been the other way the action would have proceeded."

Halsbury's Laws of England (Third Edition, Vol. 22, pp. 743-744) describes an interlocutory or final order thus:

"Interlocutory judgment or order: An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.....

In general a judgment or order which determines the principal matter in question is termed 'final'."

At page 743 of the same volume, Blackstone says thus: "Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for................. Four different tests for ascertaining the finality of a judgment or order have been suggested: (1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute? (2) Was it made upon an application upon which the main dispute could have been decided? (3) Does the order, as made, determine the dispute? (4) If the order in question is reversed, would the action have to go on."

Corpus Juris Secundum (Vol. 49 p. 35) defines interlocutory order thus:

"A final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the court has power to dispose of it, while an interlocutory judgment is one which reserves or leaves some further question or direction for future determination ........Generally, however, a final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the court has power to dispose of it, while an interlocutory judgment is one which does not so dispose of the cause, but reserves or leaves some further question or direction for future determination..... .. The term "interlocutory judgment" is, however, a convenient one to indicate the determination of steps or proceedings in a cause preliminary to final judgment, and in such sense the term is in constant and general use even in code states."(Emphasis ours)

Similarly, Volume 60 of the same series at page 7 seeks to draw a: distinction between an interlocutory and a final order thus:

"The word "interlocutory", as applied to rulings and orders by the trial court, has been variously defined. It refers to all orders, rulings, and decisions made by the trial court from the inception of an action to its final determination. It means, not that which decides the cause, but that which only settles some intervening matter relating to the cause. An interlocutory order is an order entered pending a cause deciding some point or matter essential to the progress of the suit and collateral to the issues formed by the pleadings and not a final decision or judgment on the matter in issue .. An intermediate order has been defined as one made between the commencement of an action and the entry of the judgment."

To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter. in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia J. in the case of Madhu Limaye v. State of Maharashtra (supra) clearly meant to convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Secundum. It is obvious that an order framing of the charge being an intermediate order falls squarely with in the ordinary and natural meaning of the term 'interlocutory order'. as used in s. 11(1) of the Act. Wharton's Law Lexicon (14th Edition, p. 529) defines interlocutory order thus:

"An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."

Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial A at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Code or any other statute. 'I hat is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in s. 11(1) of the Act

In other words, the test adopted by Lord Esher in this case has been followed by this Court in later cases and appears to us to contain the most valuable guidelines to judge whether an order is final or interlocutory. Applying this test to the present case it would follow that if the Special Judge did not frame a charge and discharged the accused, the proceedings would no doubt terminate but if it framed charges against the accused the proceeding would continue. Unless, therefore, an order results in a final termination of the proceeding ill any way it is decided, the order is of an interlocutory nature. Fry, L.J. almost took the same view when he observed thus:

"I think that the true definition is this. I conceive 'hat an order is "final" only where it is made upon an application or other proceeding which must whether such application or other proceeding fail or succeed, determine the action. Conversely 1 think that an order is "interlocutory" where it cannot be affirmed that in either event the action will be determined."

Lopes, L.J. fully agreed with Lord Esher, M.R. and observed:

"I think the definition suggested by the Master of the Rolls in the case that has been referred to is the right definition for this purpose. I think that a Judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties."

According to the test laid down by Lord Esher and other Lords, the order of the Special Judge impugned in the appeal is undoubtedly an interlocutory order and therefore falls within the mischief cf s. 11 (1) of the Act

Thus, summing up the entire position the inescapable conclusion that we reach is that giving the expression 'interlocutory order' its natural meaning according to the tests laid down, as discussed above, particularly in Kuppuswamy's (supra) case and applying the non obstante clause, we are satisfied that so far as the expression 'interlocutory order' appearing in s. 11(1) of the Act is concerned, it has been used in the natural sense and not in a special or a wider sense as used by the Code in s. 397(2). The view taken by us appears to be in complete consonance with the avowed object of the Act to provide for a most expeditious trial and quick dispatch of the case tried by the Special Court, which appears to be the paramount intention in passing the Act."

On its harmonious consideration of the aforesaid judgements, it has held that the framing of a charge since it levies a prima-facie established allegation of the probable involvement of the person facing the trial with regards the commission of the offence, it will take the shape of being an intermediary order and, hence, it has been held to be revisable under Section 397 of Cr.P.C. to be read with Section 401 of Cr.P.C.

Learned counsel for the revisionists has made reference to a full bench judgment rendered by the Rajasthan High Court in the case of Jarnail Singh v. State of Rajasthan, reported in 1991 Cril.J 810 , which too had yet again after taken into consideration the implications of the judgment of Madhu Limaye (supra) and V.C. Shukla (supra), the Full Bench of the Rajasthan High Court yet again on the aforesaid ratio as propounded therein has in its paragraphs 32, 33 and 34 has held "that an order framing a charge is not an interlocutory order and the said preposition was based upon a consideration of a judgment as reported in 1980 Crlj. NOC 7 Goa," wherein it has yet again taken into consideration the judgment rendered by the Madhya Pradesh High Court reported in 1989 Crlj.162 and it has been inferred by the findings recorded in paragraph 32 of the said judgment that in an event of refusal of interfere in the exercise of revisional jurisdiction where a challenge is given to the framing of a charge would amount to be a refusal to interfere in such matters where the order is not an interlocutory order, but it takes the shape of an intermediary order determining the right or liability of person facing the trial which would be grievously prejudicial to the interest of accused who is facing trial for a charge thus framed, these orders since is held to be revisal would be made subject matter of judicial review by a superior Court. In Jarnail Singh's case (supra), the Full Bench of Rajasthan High Court held as under:-

"5. Now, the expression 'interlocutory order' has not been defined in the Code of Criminal Procedure. However, the expression 'interlocutory order' has been subject matter of legal interpretation. Likewise, the expression 'final order' has also been subject matter of legal interpretation. To understand the implications of one, we shall have to keep in mind the implications of the other. Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. However, we shall have to see if in relation to Section 397(2), Cr.P.C., such an interpretation and meaning can be given to the expression 'interlocutory order'.

The expression 'final order' was interpreted in Salaman v. Warner (1891) 1 QB 734. Lord Esher M. R. discussed the meaning of the expression 'final order' in these terms:-

If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules if, it is final. On the other hand, if their decision if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.

In Bozson v. Altrincham Urban District Council (1903) 1 KB 547, Lord Alverstone, C.J. held that real test for determining the question was : "Does the judgment or order, as made, finally dispose of the rights of the parties?"

The expression 'final order' as occurring in Section 205 of the Government of India Act, 1935 was the subject matter of interpretation in S. Kuppuswami Rao v. The King AIR 1949 FC 1 : 1948 (49) Cri LJ 625. By the aforesaid section, the Federal Court was empowered to hear appeals against judgment, decree of 'final order' of a High Court in British India, provided that the other conditions specified in the section were fulfilled. After surveying the law on the subject, both British and Indian, their Lordships held that "the 'final order' must be an order which finally determines the points in dispute and brings the case to an end". It was further pointed out that such an order could not cover a preliminary or interlocutory order. This very expression viz. 'final order' came to be interpreted in a five bench judgment of the Apex Court in Mohanlal Maganlal Thakkar v. State of Gujarat AIR 1968 SC 733 : 1968 Cri LJ 876. There the question arose with regard to interpretation of Article 134(1)(c) of the Constitution of India which provides for an appeal to the apex Court from "any judgment, 'final order'" or sentence in a criminal proceeding of a High Court. "Hon'ble Justice Shelat, as he then was, speaking for himself and the majority consisting of Hon'ble Wanchoo, C.J. and Vaidialingam, J. surveyed the various British and Indian cases on the subject and observed :--

(11) The aforesaid discussion leads to the conclusion that when the Magistrate ordered the filing of the complaint against the appellant, the parties to that controversy were the State and the appellant, and the controversy between them was whether the appellant had committed offence charged against him in that complaint. The appeal filed by the appellant before the Additional Sessions Judge was against the order filing the complaint, the controversy therein raised being whether the Magistrate was justified in filing it, that is to say, whether it was expedient in the interest of justice and for the purpose of eradicating the evil of false evidence in a judicial proceedings before the Court. The controversies in the two proceedings, were thus distinct though the parties were the same. When the Additional Sessions Judge held that the complaint was justified in respect of the offence under Section 205 read with Section 114 and was not justified in respect of the other offences his judgment in the absence of a revision by the State against it finally disposed of that part of the controversy, i.e. that the complaint in respect of offences under Sections 467 and 468 read with Section 114 was not justified. When the appellant filed revision in respect of the complaint for the remaining offence under Section 205 read with Section 114, the single Judge of the High Court dismissed that revision. His order of dismissal disposed of that controversy between the parties and the proceeding regarding that question as to whether the complaint in that regard was justified or not was finally decided. As observed in (1966) 3 SCR 198 : AIR 1966 SC 1445 (supra), 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 the controversy still remained alive is irrelevant. It must consequently be held that the order passed by the High Court in the revision filed by the appellant was a final order within the meaning of Article 134(1)(c).

To determine whether an order was final or interlocutory, the following four tests were recognised in some of the cases viz.

(1) Was the order made upon an application such that a decision in favour of the either party would determine the main dispute?

(2) Was it made upon an application upon which the main dispute could have been decided?

(3) Does the order as made determine the dispute?

(4) If the order in question is reserved would the action have to go on?

Now, the first test was applied in Salaman's case (1891 (1) QB 734) . In Shubrook v. Tufnell (1882) 9 QBD 621, the order did not decide the matter in litigation but referred it back to the arbitrator, though on the application on which it was made, a final determination might have been made. The order was held to be final. This was approved in Bozson's case (1903) (1) KB 547). In the latter judgment, it was, however, recognized that 'an interlocutory order though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals and in this way, it may be final.

Now, we may deal with the judgments of the various High Courts, which had occasion to deal with the question posed before us. Some of these judgments have been noticed in Navin Chandra's case (AIR 1955 SC 58) (supra) and we need not refer to all of them. In Bharti Ram v. State of Rajasthan 1983 Raj Cri C 216, one of us (Kanta Bhatnagar, J.) observed:

However, in certain cases ex facie there may appear no scope for any charge. Refusal to interfere in such matters may lead to unnecessary harassment to the persons charge-sheeted and, therefore, the revisional jurisdiction may be invoked". In Shankar v. State of Rajasthan 1979 WLN (UC) 334, the question of framing of charge did not arise, hence the decision is not of much help. Ashok Kumar v. State 1988 Cri LR (Raj) 319, did not examine the controversy in depth at all, hence it affords no assistance to us at all. United Flour Mills Co. Ltd. v. Corporation of Calcutta 1982 Cri LJ 578 (Cal) is Division Bench Judgment of the Calcutta High Court which lays down that an order going to the root of proceedings is not an 'interlocutory order'. In R.K. Goldstain v. Stanley Haque 1979 Cri LJ 338 (Him Pra), a Division Bench of Himachal Pradesh High Court held that an order framing charge was not an interlocutory order within the meaning of Section 397(2), Cr.P.C. It refers to Madhu Limaye and Amarnath but not to V. C. Shukla. Hence, this judgment also does not afford much assistance to us. The same view was taken in Mohanlal Devdan Bhai Chokshi, 1981 Cri LJ 454, by a Division Bench of the Bombay High Court. This decision took into consideration Madhu Limaye, Amarnath as also V. C. Shukla and held that interpretation of expression 'interlocutory order' in V. C. Shukla could not govern interpretation of this expression occurring in Section 397(2), Cr.P.C. The court after discussing the various authorities, cited before it reached to the same conclusion to which we have reached. A Division Bench of the Orissa High Court also held that 'order directing some persons to face a trial without proper application of mind cannot be held to be an 'interlocutory order' (vide Ramesh Samal v. Dhabi Mandal 1987 Cri LJ 759 (Orissa). In Avadh Narain Lal v. State of Uttar Pradesh 1986 Cri LJ 1233, a Division Bench decision of Allahabad High Court, the petitioner challenged his prosecution without proper sanction. The trial Judge negatived his plea. Before the High Court, it was contended that order rejecting such a plea was 'interlocutory order'. This plea was negatived and it was held that "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." That an order framing charge is not an interlocutory order was also held in Chandra Sen Ramnath Raikar v. Ramakant Yeshwant Kharangate 1980 Cri LJ NOC 7 (Goa). This very view was taken in Ram Chandra v. State of M.P. 1989 Cri LJ 162. Thus, we find that most of the High Courts share this view unanimously that order framing charge is not an interlocutory order qua Section 397(2), Cr.P.C.

We may here take note of an argument put forth by Shri K. L. Jasmatia that framing of charge was not an order at all and hence it did not attract the provisions of Section 397, Cr.P.C. at all. The argument deserves to be noticed only for the sake of rejection and is altogether devoid of substance. When a court frames a charge, the accused is specifically directed either to plead guilty or to claim trial. Such a direction is an order of the court in every sense of the term and it is not possible to countenance the view that framing of charge is not an order at all.

To sum up, we find that an order framing charge is an order of moment; it deprives the liberty of a citizen and puts him to jeopardy of a trial. Such an order finally rejects the plea of the accused that he is entitled to a discharge or that he is not liable to be tried. Such an order concludes the enquiry and the pre-trial proceedings against the accused. The order framing charge takes away a very valuable right of the accused. Hence, in our considered opinion, an order framing charge is not an interlocutory order within the meaning of Section 397(2), Cr.P.C. and such an order is amenable to the supervisory jurisdiction of the court of Session and the High Court under Section 397(1), Cr. P.C. We answer the reference accordingly."

Hence, on a conclusion drawn by the Full Bench judgment of the Rajasthan High Court, it has been held that the orders framing of a charge under Section 228 takes away the valuable right of an accused person, as he would be forced upon to face the trial and that too on a prima-facie consideration of the evidence on record, coupled with an inference to be drawn by the Trial Court of a possibility of conviction of accused under trial on the charge thus framed being tried and hence it has held that the said order would be amenable to the jurisdiction under Section 397 of Cr.P.C. to be read with Section 401 Cr.PC as the case might be.

On the contrary, the learned Government Advocate has made reference to the judgment reported in 2018 (16) SCC 299 'Asian Resurfacing of Road Agency Private Limited and Another vs. Central Bureau of Investigation', wherein, yet again the three judges Bench of Hon'ble Apex Court particularly in paragraph 7 and

12 of the said judgment was determining the scope of framing of the charge under Section 228 for the purposes to determine its impact on a liability of a person against whom the charge has been framed. The Hon'ble Apex Court in the aforesaid judgment has considered the impact of the judgment reported in 2009 SCC Online Delhi 1292, wherein, it has while considering the ratio propounded in V.C. Shukla's case (supra) has held that a revision would be maintainable as against the framing of a charge or an order framing of a charge passed by the special courts. Therefore, it has been held in the said judgement too that a revision as against the framing of a charge would be maintainable. The Hon'ble Apex Court in the case of Asian Resurfacing of Road Agency Private Limited and another (supra) has held as under:-

In Dharambir Khattar (supra), the view of learned Single Judge is as follows:

To conclude this part of the discussion it is held that in the context of Section 19(3)(c) the words "no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial..." includes an interlocutory order in the form of an order on charge or an order framing charge. On a collective reading of the decisions in V.C. Shukla and Satya Narayan Sharma, it is held that in terms of Section 19(3)(c) PCA, no revision petition would be maintainable in the High Court against order on charge or an order framing charge passed by the Special Court.

Therefore, in the considered view of this Court, the preliminary objection of the CBI to the maintainability of the present petitions is required to be upheld...."

After discussing the law on the point, the Bench concluded:

(a) An order framing charge under the Prevention of Corruption Act, 1988 is an interlocutory order.

(b) As Section 19(3)(c) clearly bars revision against an interlocutory order and framing of charge being an interlocutory order a revision will not be maintainable.

(c) A petition Under Section 482 of the Code of Criminal Procedure and a writ petition preferred Under Article 227 of the Constitution of India are maintainable.

(d) Even if a petition Under Section 482 of the Code of Criminal Procedure or a writ petition Under Article 227 of the Constitution of India is entertained by the High Court under no circumstances an order of stay should be passed regard being had to the prohibition contained in Section 19(3)(c) of the 1988 Act.

(e) The exercise of power either Under Section 482 of the Code of Criminal Procedure or Under Article 227 of the Constitution of India should be sparingly and in exceptional circumstances be exercised keeping in view the law laid down in Siya Ram Singh [(1979) 3 SCC 118], Vishesh Kumar AIR 1980 SC 892], Khalil Ahmed Bashir Ahmed AIR 1988 SC 184, Kamal Nath and Ors. AIR 2000 SC 1997 Ranjeet Singh AIR 2004 SC 3892] and similar line of decisions in the field.

(f) It is settled law that jurisdiction Under Section 482 of the Code of Criminal Procedure or Under Article 227 of the Constitution of India cannot be exercised as a "cloak of an appeal in disguise" or to re-appreciate evidence. The aforesaid proceedings should be used sparingly with great care, caution, circumspection and only to prevent grave miscarriage of justice."

The aforesaid judgement has also taken into consideration yet another judgment as reported in 2010 SCC Online Delhi (3) RC Sabarwal vs. C.B.I., wherein, it has been held that once an order takes the shape of an intermediary order, it cannot be brought to be within the ambit of Section 482 to be scrutinized by the High Court in the exercise of its inherent power because it has been taken as to be a determination which is made in relation to the liability of the accused person under trial in relation to the liability of the accused person of facing trial and, thus, it has been held that the same would be amenable to the jurisdiction under Section 397 of Cr.P.C. as it would be an intermediary order.

The manner in which the judgment has been sought to be interpreted by the learned Government Advocate particularly extracting the ratio as laid down in paragraph-12 of the said judgment, wherein, it has laid down the parameters as to what would be the impact of framing of a charge to bring it within the ambit of sub-section (2) of Section 397 of Cr.P.C., this Court after having considered the ratios laid down in Madhu Limaye's case to be read with, along with the ratio of V.C. Shukla's case (supra) is of the view that the judgment of the Hon'ble Apex Court as reported in Asian Resurfacing of Road Agency Private Limited and Another (supra), was altogether based on a narrow compass about the bringing the order of framing of a charge within the scope of revision under Section 397 Cr.P.C. because at the stage when in paragraph-12, the Court has considered to bring an order of framing of a charge within the ambit of its scrutiny under Section 482 of Cr.P.C. or under Section 227 of the Constitution of India has not exactly considered the ratio of Mudhulima's case though a passing remark has been made in relation to a judgment of V.C. Shukla as referred in paragraph-13 of the said judgment.

The basic issue, which has already been referred in the light of the ratios propounded by the various High Courts it would be confined to the determination as to when charge as framed by the Criminal Courts under Section 228 of Cr.PC upto what extent the said order framing of a charge could be made as a subject matter of scrutiny in the exercise of its revisional powers, and as to whether a framing of a charge itself would amount to take the order outside the ambit of restrictions provided under sub Section (2) of Section 397 of Cr.PC. On a reading of sub Section (2) of Section 397 of the Cr.PC, if it is read with the implications of sub Section (1) of Section 397 Cr.PC, the powers given with the Courts, exercising the revisional jurisdiction is to scrutinize the judgement of the subordinate Courts and even extend to the suo moto powers. On account of the legislative embargo because of sub Section (1) of Section 397 Cr.PC cannot be read independent to the limitations / restrictions imposed by sub Section (2) of Section 397 Cr.PC, which prohibits the exercise of powers under sub Section (1) of Section 397 of Cr.PC in case if any order which has sought to be scrutinized judicially in a revisional jurisdiction, it takes the shape of an interlocutory order.

In order to determine the scope of a revision and its limitation, the term "interlocutory order", as per the view of this Court could be read as if to be an order though having been passed dealing with an issue during the pendency of the principal proceedings and its final adjudication, but the impact of the said order is not of such a magnitude which either determines the right of a litigating party or it affects the determination of the principal trial itself. Meaning thereby, interlocutory order takes the shape of a procedural order which is not affecting right of a person and it is also not a determination of any of the aspects of the proceedings on its merit.

There is another feature of the orders which are passed during the pendency of the proceedings within which the order of framing of charge under Section 228 of the Code of Criminal Procedure can be brought into are those orders though it has not resulting into a final determination of a trial, but is of a such nature which either affects a right of a person or it affects the vitalities of the proceedings of the trial itself. Such a nature of order as it has already been observed in catena of judgements referred above, cannot be kept in parlance in interpretation to make it as to be an interlocutory order and such type of an order which affects a right which affects the determination of the proceedings itself, I am of the view in conformity with the view expressed by the Hon'ble Apex Court that it takes the shape of an intermediary order, which determines a right despite of having been passed during the pendency of the proceedings.

This interpretation is required to be supported by the judicial pronouncements only because either of the two terms i.e. "interlocutory order" or "intermediary order", are not a subject matter or which has been determined and considered by the Code of Criminal Procedure and hence its implications can only be determined based on the circumstances of each and every order which is passed during the pendency of a case. In other words, as it has been held in Boson v. The Altrincham, Urban District Council [1903] 1 K. B. 547, that the real test for determination would be that if an order makes a final disposal of the rights of the parties, it would be a determination made during the pendency of the proceedings as it is disposing of a right of a party and hence an intermediary order, against which a revision would be held to be maintainable.

The controversy is to be scrutinized from another aspect. Based on a comparative determination of the provisions contained under Section 227 or under Section 228 i.e. a discharge or framing of a charge on a set of offences complained of against the accused under trial. Whenever the trial Court, who is ceased with the proceedings considers the material and based on the material when it comes to a conclusion that the set of allegations and the evidence do reflect that the accused under trial is prima facie shown to be involved in commission of the offence, it would result into a dismissal of an application for discharge under Section 227. On a simple reading of the provisions contained under Section 227 is an exclusive prerogative of interpretation vested with the trial Court in order to establish as to whether the Court itself is satisfied on the scrutiny of the evidence as to whether a discharge could be made in the circumstances of a case. If the Court determines that a discharge is called for on the consideration of the records and also on appreciating the arguments and submissions extended by the prosecution, a discharge could be affected upon when the Court prima facie finds that no evidence is available on record to prosecute the accused under trial.

The learned trial Court at the time of considering the issue of discharge has not to determine the consequences of the trial whether it will lead to an acquittal or a conviction. It has only to apply its mind based upon the records of the case as to whether the set of allegation or the evidences calls for carrying an unnecessary trial and its only the affect of triability of an offence when the discharge could be considered. Framing of a charge could not be on a preponderance of on a mere suspension it has to be distinguished in a manner that there has to be grave suspicion of the involvement of the accused under trial in commission of an offence. Though, at the stage of framing of a charge, the Court is not responsible to advert to all the materials which has to be utilised by the trial Court while framing of a charge but simultaneously, it also precautions that the material produced by the prosecution for framing of a charge has to be judicially considered in the circumstances of the each case for the purposes of formulation of a charge. In those circumstances, where the Court though even tentatively considers the record and the prosecution case for framing of a charge under Section 228, it affects the right of a person because as a consequence thereto, he will have to face the trial for the offences for which he is complained of. Such in a position the proceedings of a trial, I am of the view would amount to affecting a right of a person and such a determination made by the trial Court would be a passive determination of a case to be built up as against the accused under trial requiring for the conduct of the proceedings which will affect his rights and hence it would be revisable order falling to be within the ambit of sub Section (1) of Section 397 of the Code of Criminal Procedure. This is being so because the exercise of powers under Section 228 of CrPC, as against the accused person though it cannot be taken as to be a proof of a guilt on the culmination of a trial, but framing of a charge is always based upon a strong suspicion which forces upon the Courts to think that there is ground for presuming that the accused might have been responsible for committing the offence and that in itself shows a trend of the mind of the Court for framing of a charge to force the guilty person to proceed with the trial itself and thus forcing upon him to prove himself to be an innocence by placing materials on record which will amount to be a determination of a right and would be revisable.

Since the field of debate herein the present revisions, still holds good in the light of the aforesaid judgment of Madhu Limaye as well as that of V.C. Shukla coupled with the ratio propounded by the Full Bench of Rajasthan High Court, this Court too is of the view that when the Trial Court or the Sessions Court frames a charge under Section 228 and if the provisions of Section 228 itself is taken into consideration it is held that the framing of a charge the preconditioned was by considering the evidence and the prima-facie establishment of a case against the accused person, thus framing of a charge, it amounts to be as under:

(i) that it is a determination of a liability made as against the accused person, after considering the evidence on record of a possibility of the indulgment of the person charged with in the commission of the offence.

(ii) This Court is of the opinion that in these circumstances when the court has been given with the power to scrutinize the evidence, it means that it is an application of mind prima-facie by the court concerned to derive as to whether the circumstances prevail where the person is required to be tried for the offence complained of by framing a charge.

(iii) As a consequence of the determination thus made since a person is being made liable to face a trial, it would amount to be consequential infringement of his right and, hence, it ought to be taken as to be an intermediary order and not an interlocutory order though it might have been passed during the pendency of the Sessions Trial or the trial concerned in which the charge has been framed.

After having considered the aforesaid ratios as referred above, this Court too is of a prima-facie opinion that framing of a charge in view of the ratios aforesaid would amount to be an intermediary order and not an interlocutory order and once it has been held out to be intermediary order then the embargo of sub-section (2) of Section 397 of Cr.P.C. would not be available to make the revisional jurisdiction ousted from considering the implications of the order framing the charge in the revisional jurisdiction.

Hence, in that view of the matter, this Courts holds that as against the order of framing of a charge, the revision under Section 397 to be read with Section 401 of Cr.PC would be maintainable.

After having held that the revision would be maintainable, the question, which is required to be considered and also as argued by the learned Government Advocate, is that as to whether though the framing of a charge might not be an interlocutory order, then the point, which now arises for determination as of now is as to what would be the extent of exercise of revisional power under Section 397 Cr.PC, particularly in light of the ratio laid down in paragraph 7 of the Hon'ble Apex Court reported in Pallavi' case (supra), wherein, the revisional power has been circumscribed by the Hon'ble Apex Court in the light of the aforesaid ratios as referred in paragraph-7, that once a charge has been framed by the learned Trial Court though it might be held to be revisable then the issue, which comes up for consideration is as to, to what extent the tentacles of Section 397 of Cr.P.C. could be extended to scrutinize the order of framing of charge and there the Hon'ble Apex Court has circumscribed the powers under Section 397 Cr.PC, to the effect that it cannot be extended to an extent of appreciation of evidence, which on being considered by the revisional court may have an impact on the trial itself.

An identical ratio has been laid down by the Hon'ble Apex Court in a judgment reported in 2019 (3) SCC 179, wherein, yet again too the court has held that the issue with regards to the framing of charge under Section 228 Cr.PC or discharge under Section 227, when it is put to challenge in revisional jurisdiction, the scope of the revisional jurisdiction, which has already been held to be very limited to its extent of interference, the charge cannot be scrutinize to an extent of creating a dichotomy by way of an appreciation made by the learned Trial Court while framing of a charge having held the revision to be maintainable against the charge. This will not amount to widen the scope of the revisional jurisdiction to scrutinize the order of framing of a charge in its precision by appreciating the evidence, which has been laid before the court below in such a fashion that it may have a negative effect and impact on the trial itself.

Hence, in that view of the matter, since the scope of revisional jurisdiction is very limited and since the charge has been framed after the implications flowing from the provisions contained under Section 228, this Court holds that after having scrutinize the orders framing the charge and its appraisal in the revisional jurisdiction is very limited, this court is of the view that the charge, which has been put to challenge by the revisionist before this Court since it entails a rescrutinization of the evidence in the exercise of its revisional power, this court declines to interfere in exercising its revisional power to scrutinize the order of framing of a charge and consequently, the revisions on its merit fail and the same are accordingly dismissed.