Prakash and Others(In Jail) vs State of U.P.

G.P. Mathur, J.—A learned single Judge has referred the following question for decision by larger bench:

"Whether an order of remand could be subject-matter of a revision u/s 397/401, Code of Criminal Procedure or not?

Sub-section (2) of Section 397, Code of Criminal Procedure lays down last the power of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The expression "interlocutory order" has not been defined in the Code. It will, therefore, be useful to refer to its meaning as given in some of the dictionaries:

The New Lexicon Webster''s Dictionary:

Interlocutory: Pronounced and arising during legal procedure, not final.

Webster''s Third New International Dictionary:

Not final or definitive ; made or done during the progress of an action.

Wharton''s Law Lexicon:

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 e.g., an order appointing a receiver or granting an injunction, and a motion for such an order is termed an interlocutory motion.

Black''s Law Dictionary:

Provisional ; temporary ; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.

Ordinarily and generally, the expression ''interlocutory order'' has been understood and taken to mean as a converse of the term ''final order''. In volume 22 of the third edition of Halsbury''s Laws of England at page 742, however, it has been stated in Para 1606:

" a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required." In Para 1607 it is said:

"In general a judgment or order which determines the principal matter in question is termed "final". In Para 1608 at pages 744 and 745 we find the words:

"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 of procedure, or (2) is made after judgment, and merely directs how the declarations of rights 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 AIR 1949 1 (Federal Court) . the following principle laid down in Salaman v. Warner (1891) 1 QB 734, was quoted with approval:

"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."

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.

However, in Madhu Limaye Vs. The State of Maharashtra, such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order was not accepted as this will render the provisional power conferred by Section 397(1) nugatory. After taking into consideration the scheme of the Code of Criminal Procedure and the object of conferring a power of revision on the Court of Sessions and the High Court, it was observed as follows:

"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 be 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 AIR 1949 1 (Federal Court) 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 order."

Section 209, Code of Criminal Procedure confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Sessions and also until the conclusion of the trial. Section 309, Code of Criminal Procedure confers power upon a Court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has not bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down by the Supreme Court In Madhu Limaye''s case (supra), it cannot be categorized even as in "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by Sub-section (2) of Section 397, Code of Criminal Procedure a revision against the said order is not maintainable.

Learne d Counsel for the applicant has referred to Rajesh Misra v. State of U.P. 1994 ACC 197 in support of his submission that a revision against an order of remand is maintainable. In the said case, the learned single Judge entertained revision against an order of remand but did not at all consider the question whether the revision was maintainable in view of the bar created by Section 397(2), Code of Criminal Procedure Therefore, the authority cited by learned Counsel can be of no assistance to him. That apart, in Rajesh Misra (supra) A.S. Tripathi, J. observed as follows:

".......In my opinion, the amended provisions of Section 209, Code of Criminal Procedure will remain in force only till the provisions of Section 309 of the Code of Criminal Procedure are applicable and continued. But once the provisions of Sub-section (2) of Section 309, Code of Criminal Procedure begins to apply on adjournment or postponement of the trial, then a fresh remand is required if the accused is in custody."

The aforesaid view is contrary to the plain language of Section 209(b), Code of Criminal Procedure which lays down that a Magistrate while committing the case to the Court of Sessions remand the accused to custody during and until the conclusion of the trial. This case has also been overruled by a Division Bench in Vimal Kumar Sharma v. State 1995 AWC 424.

We are in respectful agreement with the view taken in Radhey Shyam v. State 1994 ACC 645, wherein it has been held that an order granting remand is an interlocutory order.

Our answer to the question referred is as follows:

"An order granting remand is a purely interlocutory order and no revision would lie against such an order in view of the. bar created by Sub-section (2) of Section 397, Code of Criminal Procedure."

The revision may now be listed before the appropriate Bench for admission.