Mohd. Aslam Malik vs State and Others

Muzaffar Hussain Attar, Judge

This criminal revision petition is filed against the order dated 31st Oct. 2008. In terms of the said order petitioner who is accused No.8 before

trial court has been ordered to be charged for having allegedly committed offences u/s 5(2) of P.C Act read with 120-B, 471,467 and 420 RPC.

When this petition came up before the court Id counsel was requested to satisfy the court about maintainability of the petition. Ld counsel has

referred to and relied upon judgment(s) of the Hon'ble Supreme Court in case titled Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and

Another, as also judgment of the Jharkand High Court in case titled Umdanand Mishra Vs. State of Jharkhand, . Ld counsel submitted that this

revision petition is competent and maintainable against the order of framing charge. Ld counsel while relying upon the judgment in Umdanand

Mishra's case in which the Jharkand High Court has held that order of framing charge, or refusing to frame charge, is not interlocutory order and

thus bar v/s 397(2) Cr.P.C (Central Act) is not attracted, submitted that this petition is maintainable. In Rajdendra Sitaram Pande case in a

complaint, process was issued and the Hon'ble Supreme Court held that such an order is not purely interlocutory order and bar u/s 397(2)

Cr.P.C, (Central Act.) therefore, is not attracted.

It is on the basis of these judgments Id counsel submitted that this revision petition is competent against the order of framing charge.

Section 435 of Code of Criminal Procedure has been amended and sub section (4-a) has been inserted by Act of XXXII1989. Section (4-a) is

reproduced as under:-

The power of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any appeal inquiry, trial or

other proceedings.

A Division bench of this court in case titled S.K. Mahajan v. Municipality Jammu reported in KLJ 1982 1, had the occasion of considering the

question as to whether the order of framing charge is interlocutory order and the bar contained in section (4-a) of Section 435 Cr.P.C will be

attracted and revision filed against such order is maintainable.

The Hon'ble D.B had the occasion of considering plethora of judgments rendered by Hon'ble Supreme Court which include case titled Mohan

Lal Magan Lal Thacker Vs. State of Gujarat, ; Amar Nath and Others Vs. State of Haryana and Another, ; Madhu Limaye Vs. The State of

Maharashtra, ; R.P Kapoor v. State of Punjab AIR 1960 SC 865; Raj Kapoor and Others Vs. State and Others, ; Badri Prasad Vs. The State of

Madhya Pradesh and Another, and after considering these judgments came to following conclusion:

(i) The bar created by Sub section (4-a) of Section 435 would be attracted to it, and the court would be powerless to revise an order framing a

charge in exercise of its powers ud ner section 439 read with section 435, where the challenge to the ordi;r is based upon the merits of the main

co-accused has been guilty of the offence charged.

(ii) Such a bar would not be, however, attracted to it, and the court would be competent to revise an order framing a charge in exercise of its

aforesaid powers in case the challenge to the order is based upon a plea, which is independent of the main controversy, and which if accepted,

would conclude the proceeding against the accused.

Section 435 Cr.P.C has been substituted by the Act of XXIII of Samvat 1989, sub section 2 of the said section is reproduced as ander:

(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 proceedings.

The provisions is paramateria with earlier provisions in section (4-a) of section 435 Cr.P.C.

The issue involved before the Hon'ble Division bench of this court was as to whether order of framing charge could be challenged on its merits

by filing revision petition. The Hon'ble Division bench answered the issue in negative holding that the revision petition is not maintainable. In this

case the order of framing charge has been questioned on its merits and not on any other ground which could be said to be independent of the

merits of the case.

The case is squarely covered by judgment of Division bench of this court. This revision petition is held not to be maintainable.

In Rajendra Kumar Sitaram Pande's case the issue before the Hon'ble S.C was as to whether issuance of process in a complaint is

interlocutory order or not. The issue before the Hon'ble Supreme Court was not about the order of framing charge. The judgment of the Hon'ble

Supreme Court relied upon by Id counsel for the petitioner is of no help to Id counsel in this case as in that case process was issued in the

complaint u/s 204 of the Code of Cr. Procedure (state Act). The said judgment thus does not help the contention of the Id counsel for the

petitioner that the revision petition is maintainable. The judgment of Umdanand Mishra's case in view of the law laid down by this High Court

cannot be followed as for this court the Judgment has only persuasive value whereas the Division bench Judgment of this court is of binding nature

and is to be followed until such time law laid down therein is changed by larger bench.

The judgment of the Hon'ble Division Bench is to be followed by bench of Id Single Judge in view of the constitutional scheme and the doctrine

of consideration of judgment rendered by Id single judge by bench of two Hon'ble judges. The judgment rendered by the two Hon'ble Judges

constituting Division Bench is a final judgment. Rule 34 (2) of the J&K High Court rules is noticed as under.

(2) a decision of a Division Bench on a appoint of law or usage having the force of law shall be binding on a Single Bench. The High Court rules

thus also provides that decision of Division bench on a point of law or usage having the force of law shall be binding on the Single Bench.

For the above stated reasons this petition is held to be not maintainable and is accordingly dismissed. The dismissal of this petition, however,

shall not preclude the petitioner from availing of any other remedy in case advised.