Somaram vs Jewantharaj Lunia and Another

Maheswaran, J.—This revision raises an important point of law which lends itself to subtle arguments and which is also bereft of authority of

this Court.

Now to abbreviate statement of facts which project this legal issue, Somaram, the revision petitioner, was accused of kidnapping Chandrakala,

a minor aged 16 years, daughter of the first respondent Jawanthuraj Lunia, out of the lawful guardianship of her parents. The revision petitioner

was employed by the first respondent Jawanthuraj Lunia. On the complaint of Jawanthuraj Lunia, father of Chandrakala, a ease was registered by

the second respondent. The minor girl was traced in the company of the revision petitioner at Tirupati. The revision petitioner was arrested and

later released on bail. The girl was handed over to the first respondent, her father. Originally the revision petitioner was ordered to be released on

bail on condition that he should reside at Tiruchirapalli and report everyday before the Cantonment Police, but later the condition was modified and

he was allowed to report everyday at the C-l police station, Madras The revision petitioner is alleged to have printed pamphlets and distributed

them to the public and sent a copy to the father of the minor girl and another copy to the minor girl herself. In that pamphlet it was stated that

Chandrakala attained majority and is not a minor, that she and the revision petitioner were married and that she is being detained by her father

against her wishes. The father of Chandrakala then filed an application in Criminal M.P. No. 3523 of 1979 on the file of the Court of Session,

Madras, for cancellation of the bail granted already as the revision petitioner was interfering with the course of justice. The revision petitioner

contested the application and contended that he had not distributed any pamphlet and that he never printed the pamphlet. The learned Sessions

Judge allowed that application and cancelled the bail granted to the revision petitioner. It is against that order, a revision has now been filed.

An objection is now taken that the order of the Sessions Judge being interlocutory, the revision petition is not maintainable in view of Sub-s. (2)

of S. 397 Crl. P.C.

As to what an interlocutory order is has not been defined anywhere in the Code of Criminal procedure. Certain rulings point out the distinction

between final and interlocutory orders, which would render some assistance in defining the meaning of inter locator orders'' in Sub-s. (2) of S. 397

of the Code. In Mohan Lal Magan Lal Thacker Vs. State of Gujarat, the Supreme Court observed thus:

The question as to whether a judgment or an order is final or not has been the subject-matter of a number of decisions; yet no single general test

for finality has so far been laid down. The reason probably is that 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 ''final'' and ''interlocutory'' has. therefore, to be considered separately

in relation to. the particular purpose for which it is required However, generally speaking, a judgment or order which determines the principal

matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply.

(Halsbury''s Laws of England. 3rd edition. Vol. 22. 742-743). In some of the English decisions where this question arose, one or the other of the

following four tests was applied.

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

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

Does the order as made determine the dispute?

If the order in question is reversed, would the action have to go on?.

That was a case where after an enquiry under S. 476, Crl. P.C. the Judicial Magistrate, Baroda, ordered that the appellant in that case be

prosecuted for offences under Ss.205, 467 and 468, read with S. 114, I.P.C. The Additional Sessions Judge in appeal held that the complaint was

justified but only in respect of the offence under S. 205 read with S. 114, I,P,C. The High Court dismissed the revision of the appellant therein, but

granted a certificate under Art. 134(l)(c) of the Constitution of India. When the matter came up before the Supreme Court, a question arose

whether the order was a final order within the meaning of the said constitutional provision. The majority decision was that it was a final order.

In Amarnath v. State of Haryana 1977 Cri. L.J. 189 : 1978 L.W. (Crl) 40 the Supreme Court stated as follows:

Decided cases have laid down that interlocutory orders to be appeasable must be those which decide the rights and liabilities of the parties

concerning a particular aspect. It seems to us that the term ''interlocutory order'' in S. 397(2) of the 1973 Code has been used in a restricted sense

and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important

rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of parts cannot be said

to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which

formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning

cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory

orders against which no revision would lie under S. 397(2) of the 1973 Code.

My attention was invited by the learned counsel for the revision petitioner to a ruling in Madhu Limaye Vs. The State of Maharashtra, where

their Lordships of the Supreme Court came to the conclusion that an order rejecting the plea of the accused on a point which, when accepted, will

conclude the particular proceeding, will surely be not an interlocutory order within the meaning of S. 397(2).

It should be noted here that the order which is sought to be revised by the revision petition, is the order of the Court of Session, canceling the

bail granted to the accused revision petitioner. Applying the four tests culled out from the English decisions and enumerated by the Supreme Court

in Mohan Lal Magan Lal Thacker Vs. State of Gujarat, to which reference has been made earlier, it would be noticed that the order passed by the

Sessions Judge will not be a final order. Further, as pointed out already, the Supreme Court in Amar Nath and Others Vs. State of Haryana and

Another, has observed that 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 orders against which no revision would lie under S. 397(2) of the 1973 Code.

Therefore, the order canceling bail already granted would also amount to interlocutory order against which no revision would lie.

The learned counsel for the revision petitioner then urged before me that the High Court possesses the inherent powers to be exercised ex

debito justitiae to do the real and substantial justice for the administration of which alone the Court exists and nothing in S. 397(2) can limit or

affect the exercise of the inherent powers by the High Courts Per contra it was contended on the authority in Amar Nath and Others Vs. State of

Haryana and Another, that where a particular order is expressly barred under S. 397(2) and cannot be the subject of revision by the High Court,

then to such a case the provisions of S. 482 would not apply. In Madhu Limaye Vs. The State of Maharashtra, the Supreme Court stated that the

statement of law laid down in Amar Nath v. State of Haryana, namely, where a revision to the High Court against an order of the Subordinate

Judge is expressly barred under Sub-s. (2) of S. 397 of the 1973 Code, the inherent powers contained in S. 482 would not be available to defeat

the bar contained in S. 397(2), is not quite accurate'' and needs some moderation. The ''moderation'' is in the following terms:

In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-s. (2) of S. 397 operates only in exercise of the

provisional 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 or 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.

It is therefore, obvious that the inherent powers may come into play as a revision is not competent and as there is no other provision in the Code to

redress the grievance of the accused who contends that the Bail already granted to him has been cancelled on grounds which are improper. But,

then the provision under S. 482, Crl. P.C. should be exercised very sparingly. It has now to be seen whether the petitioner has made out a case for

the exercise of the inherent jurisdiction.

The contention of the revision petitioner is that the order passed by the Sessions Judge was totally unjustified, for, the revision petitioner has not

printed the alleged pamphlets nor has he distributed them. The competency of the first respondent applying for cancellation of bail has not been

questioned before me. There is no bar far an application under S. 439(2) of the Code of Criminal Procedure, for cancellation of bail by a private

complainant see observations in Ranjit Singh Vs. Nand Lal, . The Sessions Judge has concluded that this pamphlet must have been printed and

distributed by the revision petitioner, a conclusion which I cannot say is wrong. The pamphlet purports to say that the girl is not a minor, that she

has married the revision petitioner, and that she is being detained against her wishes by the first respondent, her father. That pamphlet also

appealed to the people of his community to restore the girl to him. I am unable to persuade myself to hold as contended by the petitioner''s

Counsel that this pamphlet is the'' creation of the first respondent, the father of the girl, to invent a ground for cancellation of the bail granted

already to the revision petitioner, in this case, the revision petitioner has printed the pamphlet while he was on bail and has therefore, abused his

liberty. At any rate, there is reasonable apprehension that he will interfere with the course of justice. The order of the Sessions Judge canceling the

bail is correct and calls for no interference. This petition is dismissed. The trial Court will expedite the trial of the case.