Rama Kumari Kalal vs Udailal

K.L. Shrivastava, J.

This revision petition is directed against the order dated 29-1-1988 passed by the IIIrd Additional Sessions Judge, Shajapur, Camp Shujalpur in Sessions Trial No. 1 of 1988 framing charge u/s 307/149 of the Indian Penal Code against the petitioners.

Circumstances giving rise to the revision petition are these. According to the first information report the informant''s brother Kailash is a licensed vendor of magazines at the Shujalpur railway station. The petitioners Kailash and Kuldeep are the servants of the petitioner Motiram and indulged in unauthorised sales of newspapers and magazines. The informant Balmakund had asked them to desist from indulging in such sales. In consequence, on 17-6-1987 at about 8 a.m. the petitioners, five in number, duly armed, attacked him. Motiram had declared that he should be done, to death. The informant sustained several injuries including one incised one on the head and had fallen unconscious.

At the conclusion of investigation, the police filed challan against the petitioners and the charge aforesaid has been framed against them.

The contention of the petitioners'' learned counsel is that looking to the injuries no case for charge u/s 307 of the Indian Penal Code can be said to have been made out.

The contention of the learned counsel for the non-applicant State is that as held in the decision in Radheshyam''s case, Criminal Revision No. 199/84, decided on 30-5-1988 the order framing charge is not revisable.

It is next contended that charge may be framed if the material is sufficient for a strong suspicion of the guilt and in the instant case the material on record is sufficient to sustain the charge of attempted murder.

The point for consideration is whether the revision petition deserves to be allowed.

Section 397(2) of the Criminal Procedure Code, 1973 (for short ''the Code'') lays down that powers of revision shall not be exercised in relation to any interlocutory order. The Code does not define ''interlocutory order''. The legislature retaining the power of revision has so provided in respect of the ''interlocutory order'' and the purpose behind this is to keep such an order outside the purview of the powers of revision so that the inquiry or trial may proceed without delay. In this connection the decision in Smt. Parmeshwari Devi Vs. The State and Another, is pertinent.

It may be pointed out that the word ''interlocutory'' has not been used in the aforesaid provision as converse of the final order and in between the two there may be intermediate orders. In paragraph 24 of the decision in Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, which relates to Terrorists and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) it has been pointed out that on reviewing the entire case law on the subject, the following two principles were deduced therefrom, namely, (1) that a final order has to be interpreted in contradistinction an interlocutory order; and (2) that the basis for determining finality of an order is whether the judgment or order finally disposes of the rights of the parties.

According to the decision in Amar Nath and Others Vs. State of Haryana and Another, the term ''interlocutory order'' has been used in the provision in a restricted sense and not in any broad or artistic sense and covers only orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. The decision points out that any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision in the High Court against that order, because that would be against the very object which forms the basis for insertion of the provision regarding revision. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory order against which no revision would lie u/s 397(2) of the 1973 Code. But orders which though not final are matters of moment and which effect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interm order so as to be outside the purview of revision.

There is no direct pronouncement by the Supreme Court on the question whether or not an order framing charge in respect of Indian Penal Code offence is revisable under the Code but from the trend of its observations it is clear that order framing charge is revisable. No doubt in the decision in V. C. Shukla''s case, AIR 1980 SC 963 order framing charge has been held to be interlocutory in nature but it has to be remembered that the decision relates to Section 11(1) of the Special Courts Act, 1979 which excludes the provisions of the Code. According to the decision the expression ''interlocutory order'' has been used therein in a natural sense differently from the Code where it is used in a wider sense. In the decision in Madhu Limaye Vs. The State of Maharashtra, , it has been pointed out that the meaning of the words ''interlocutory'' and ''final'' must be construed separately in relation to the particular purpose for which it is required. The decision in R. Shankarlala''s case, 1985 Cri. L.J. 68 may also be usefully perused.

In the decision in Dr. Dattatraya Narayan Samant and others Vs. State of Maharashtra, the aforesaid Supreme Court decision in Amarnath''s case, Madhu Limaye''s case and V. C. Shukla''s case have been referred to and it has been held that the order framing charge is not interlocutory within the meaning of the expression as used in Section 397(2) of the Code.

The decision in Radheshyam''s case (supra) does not take note of this Court''s decision in Mohammad Yusuf''s case, 1977 (2) MPWN 348 wherein in revision, quashing of the charge was sought and allowed as also that of the decision in Ramchandra''s case, 1988 Cri.LJ. 11 wherein it has been held that order framing charge is revisable.

It may be pointed out that order framing charge constitutes an important stage in the case and the decision affects the rights of an accused. To hold that such an order is not revisable is to render the provision regarding revision meaningless.

In the ultimate analysis I hold that the present revision petition is tenable.

Now as to the merits, Actus reus and mens rea (guilty mind) both must concur to constitute the crime of attempted murder punishable u/s 307 of the Indian Penal Code. It may be pointed out that mens rea precedes the act and in determining the same the consequent injuries sustained by the victim are no doubt material but they are certainly not conclusive. Mens rea as already stated, precedes the act and for the matter of that the offence may be constituted even without an injury as may be the case when the offender misses the aim. Hurt it may be stated is not an ingredient of the offence of attempted murder.

In the instant case I find that the first information report has been promptly lodged. There is medical report regarding the head injury. There is evidence of previous ill-will and also of the declaration that the victim should be done to death. As pointed out in Raysingh''s case, 1987 Cr.L.R. (M.P.) 63, mens rea has to be gathered from all surrounding facts and circumstances.

It is well settled that order framing charge is not to be lightly interfered with. The following observations made in the decision in State of V.P. vs. Man Mohan and others, 1986 Cr. L.R. (SC) 329 may usefully be reproduced:

We have heard learned counsel for the appellant State as also the learned counsel for the respondents accused fully. Having given our most anxious consideration to the matter, we are of the firm opinion that the High Court should not have quashed the charge framed by the learned Magistrate in exercise of its revisional and reference jurisdiction. Since the learned Magistrate had formed the opinion that there were grounds to presume that the accused had committed the offence and since it cannot be said that the prosecution was false, frivolous or vexatious or one which was by way of abuse of the process of law, the High Court should not have quashed the charge in exercise of the revisional and reference powers. We do not, however, consider it appropriate to express our opinion on the questions arising in the matter and the points raised by the learned counsel on merits, lest any observation made by us may occasion prejudice to one side or the other. We, therefore, do not express our opinion on any of the questions dealt with by the High Court. All the questions are accordingly left open.

As to the scope of revisional jurisdiction the decision in Roopkishore''s case, 1987 Cr.L.R. (M.P.) 160 is pertinent.

In the result, the revision petition fails and is dismissed. The record of the trial Court be sent back immediately.