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Judgment
Nikhil S. Kariel, J
Heard learned Senior Counsel Shri I.H. Syed with learned Advocate Shri Aniq A. Kadri for the applicant and learned Public Prosecutor Shri
Mitesh Amnin with learned APP Shri Pranav Trivedi for the respondent â€" State.
By way of this application preferred under Section 397 read with Seciton 401 of Code of Criminal Procedure, 1973 (hereinafter referred
“Cr.P.C.), the applicant challenges the order passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, in Criminal Misc.
Application No.10 of 2021 dated 15.01.2021, whereby the order passed by the learned Chief Judicial Magistrate, Ahmedabad (Rural) refusing to grant
police remand of the applicant in connection with Criminal Complaint being FIR No. 11191045202201 for the offences punishable under Section 420,
465, 467, 468, 471 read with 120(B) of Indian Penal Code, has been set aside and the applicant is directed to be remanded to the police custody from
16.01.2021 at 11:00 a.m. to 22.01.2021 at 5:00 p.m.
At the outset, learned Public Prosecutor has raised a preliminary objection with regard to the maintainability of the present Revision Application
inasmuch as according to him, an order remanding the accused to the custody would be an interlocutory order and therefore, the same would not be
maintainable as specified under Section 397 (2) of the Cr.P.C. In support of such contention, learned Public Prosecutor has relied upon the decision of
the Supreme Court in the case of State Represented by Inspector of Police and Ors. Vs. N.M.T. Joy Immaculate reported in (2004)5 Supreme Court
Cases 729 , whereby the Supreme Court has held that an order of granting remand is a pure and simple interlocutory order and in view of bar created
by sub-section (2) of Section 397 of Cr.P.C., a revision against the said order is not maintainable. Para 13 of the decision of Supreme Court, which is
relevant for the present purpose is quoted herein below.
“13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 Cr.P.C.
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 Cr.P.C. 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 no 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 or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the
test laid down in Madhu Limaye's case (supra), it cannot be categorised even as an ""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 Cr.P.C., a revision against the said order is not maintainable. The
High Court, therefore, erred in entertaining the revision against the order dated 6.11.2001 of the Metropolitan Magistrate granting police custody of the
accused Joy Immaculate for one day.â€
(emphasize supplied)
Learned Public Prosecutor further submits that while an order passed by the learned Magistrate refusing the remand would not be an interlocutory
order and therefore, the same would be revisable order and hence, while the Revision Application preferred by the State against the order passed the
learned Magistrate refusing grant of remand was perfectly maintainable but at the same time, challenge against order of the learned Sessions Court
granting police remand would not maintainable under revisional jurisdiction of this Court since it would be hit by bar of Section 397(2) of the Cr.P.C.
As against the same, learned Senior Counsel Shri Syed has relied upon the very same judgment, more particularly,in preceding paragraph where the
Supreme Court has made observation as thus:
“12. …... In the appeal preferred by the accused, this Court after referring to Amar Nath v. State of Haryana 1977 (4) SCC 137, Madhu Limaye
v. State of Maharashtra AIR 1978 SC 47 and V.C. Shukla v. State AIR 1980 SC 962 held that in deciding whether an order challenged is an
interlocutory or not, as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is
whether by upholding the objections raised by a party, it would result in culminating the proceedings. If so, any order passed on such objections would
not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. It was further held that as in the facts of the case, if the objections
raised by accused were upheld, the entire prosecution proceedings would have been terminated, the order was not an interlocutory order and
consequently it was revisable.â€
Learned Senior Counsel has further submitted that the submission of the learned Public Prosecutor may be self defeating inasmuch as if order
granting the police remand would be termed as an interlocutory order than the converse would also hold true i.e. an order refusing to grant remand
would also stand on equal footing and therefore, the Revision Application by the State before the Sessions Court, order of which Court is under
challenge before this Court in the present proceedings would also not be maintainable. Therefore, under such circumstances, he submits that the
preliminary objection of the learned Public Prosecutor is to be upheld by this Court then consequently, this Court may set aside the order passed by the
learned Sessions Court on the ground of the proceeding before the learned Sessions Court lacking jurisdiction.
Heard learned Advocates for the respective parties, Various other contentions on merits of the case have been argued by the learned Senior
Counsel for the applicant and learned Public Prosecutor for the State, but since this Court proposes to decide this application on the ground of
jurisdiction, therefore, this Court is not adverting to and deciding the issue on its merits.
In so far as the preliminary objection raised by the learned Public Prosecutor, this Court is of the considered opinion that in view of the clear dictum
laid by the Hon'ble Supreme Court that an order granting remand is an interlocutory order, therefore, present Revision Application challenging order
impugned would not be maintainable. As regards the submission of the learned Senior Counsel with regard to the observations of the Hon'ble Supreme
Court in very same judgment, this Court is of the opinion that while the Hon'ble Supreme Court was laying down feasibility test to decide what is an
interlocutory order and what is revisable order, in the present case in view of the specific finding of the Hon'ble Supreme Court, this Court is not
required to advert to the feasibility test. Once the Hon'ble Supreme Court has laid down that the order granting police remand is an interlocutory order,
then this Court is absolutely bound by such finding and it is not open for this Court to go beyond such finding and attempt to find, albeit applying such
feasibility test as laid down by the Hon'ble Supreme Court, as to whether such order is revisable or not.
As regards the contention of learned Senior Counsel for the applicant that if this Court were to decide in favour of the State as regards preliminary
objection i.e. an order granting police remand being hit by bar of Section 397(2) of Cr.P.C. then the order under challenge of the learned Sessions
Court also deserves to be set aside on the ground of proceedings before the learned Sessions Court lacking jurisdiction, this Court is of the opinion that
both the orders i.e. order granting police remand and order refusing police remand do not stand on the same footing and would not result into the same
consequence.
As such this Court is not required to go into this issue at all since such an issue had neither been raised before the Sessions Court on behalf of the
applicant herein nor are there any pleading to such effect in the Revision Application. Nonetheless since the submissions has been before this Court by
the learned Senior Counsel, this Court deems it fit and proper to decide the same.
In so far as the contention raised by the learned Senior Counsel, this Court is of the opinion that the answer to the said contention rests in applying
the feasibility test as laid down by the Supreme Court inasmuch as “whether by upholding the objection raised by the party, it would result in
culminating the proceedingsâ€. Before the learned Sessions Court, what had been challenged was an order whereby the Magistrate had refused to
grant police remand. That upon request to grant police remand being rejected, the prosecution proceedings as regards the remand stand terminated.
Therefore, since the said order leads to termination of a particular proceedings, in the considered opinion of this Court, such an order cannot be termed
as an interlocutory order and is thus, amenable to revisional jurisdiction under Section 397 of Cr.P.C. An order refusing to grant remand would result
in the said proceeding coming an end. None grant of remand would result in the prosecution proceedings coming to an end and therefore, such an
order cannot be termed to an interlocutory order and consequently, the same is revisable.
Thus, above opinion of this Court stands forfeited vide judgment of the Division Bench of this Court reported in 2012(2) GLR 1656. In the said
judgment, the Division Bench of this Court (Coram: A.L. Dave and J.B. Pardiwala, JJ.) had an occasion to decide Reference, wherein following
questions were raised:
“(i) Whether an order refusing to grant remand has any bearing on the proceedings of the trial itself? Whether an order refusing to grant remand
has any effect on the ultimate decision of the case?
(ii) Whether an order refusing to grant remand can effect the progress of the trial or its decision in any manner?
(iii) Whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order?
(iv) Consequently, whether a revision against an order refusing to grant police remand is maintainable under Section 397 Cr.P.C.?
The Division Bench inter alia relying upon the decision of the Supreme Court in the case of State Represented by Inspector of Police (Supra), had
answered the Reference as thus:
“(I) An order refusing to grant remand has direct bearing on the proceedings of the trial itself and in a given case will definitely have effect on the
ultimate decision of the case.
(II) An order refusing to grant remand may affect the progress of the trial or its decision in any manner if Investigating Agency is deprived of having
custodial interrogation of the accused so as to effectively investigate the offence and gather necessary evidence and materials to put the accused to
trial.
(III) An order refusing to grant police remand would be a final order and a revision under Section 397 read with Section 401 of the Code would be
maintainable.â€
Thus, it becomes clear that an order refusing to grant police remand would not be an interlocutory order and therefore, an application for revision
under Section 397 read with Sec. 401 of Cr.P.C. would be maintainable. Thus, even on law, the submissions of learned Senior Counsel for the
applicant of order refusing to grant remand being hit by bar of Section 397(2) of Cr.P.C. stands negated.
For the reasons stated hereinabove, present Revision Application fails as not being maintainable and hence, the same is rejected. Notice is
discharged.