Madhu Limaye Vs. The State of
Maharashtra  INSC 205 (31 October 1977)
CITATION: 1978 AIR 47 1978 SCR (1) 749 1977
SCC (4) 551
CITATOR INFO :
F 1980 SC 258 (10) E 1980 SC 962
(6,21,23,34,44,67,103,105,114) F 1983 SC 67 (5) RF 1992 SC 604 (97)
Code of Criminal Procedure, ( Act 11 1974),
1973 Ss. 397 (2) & 482-Scope of-Whether the bar in s. 397(2) refers to
revisional powers of the High Court in all cases or only refers to revisional
powers against interlocutory orders.
The appellant was prosecuted for having made
statements dafamatory to the then Law Minister of the Government of
Maharashtra. The Government decided to prosecute the appellant for an offence
tinder Section 500 of Indian Penal Code on the ground that the Law Minister was
defamed in respect of his conduct in the discharge of his public functions.
Sanction was purported to have been accorded under section 199(4)(a).
Thereafter, the public prosecutor filed a complaint in the court of the
Process was issued against the appellant upon
the said complaint. The appellant filed an application to dismiss the complaint
on the ground that the court had no jurisdiction to entertain the complaint.
The appellant contended that the allegations were made against Shri Antulay in
relation to what he had done in his personal capacity and not in his capacity
as a Minister. The appellant challenged the jurisdiction of the court on some
other grounds, also challenging the validity of the sanction. The Sessions
Judge rejected the contentions of the appellant and framed a charge against the
appellant under section 500 of the Penal Code. The appellant, thereupon, filed
a revision application in the High Court.
The High Court without going into the merits
held that the revision application was not maintainable in view of provisions
of section 397(2).
Allowing the appeal by special leave,
HELD : 1. On a plain reading of section 482
it would follow that nothing in the code which would include section 397(2)
shall be deemed to limit or affect the inherent powers of the High Court.
However, it cannot be said that the said bar is not to operate in the exercise
of the inherent power at all because it would be setting at naught one of the
limitation imposed upon the exercise of revisional powers.
A happy and harmonious solution would be to
say that the bar provided in section 397(2) operates only in, exercise of the
revisional power of the High Court meaning thereby that the High Court will
have no power of revision in relation to any interlocutory order. The inherent
power would come into play there being no other provision in the code for the
redress of the grievance of the aggrieved party. in case the impugned order
brings about a situation which is an abuse of the process of the court or for
the purpose of securing the ends of justice interference by the High Court is
absolutely necessary, then nothing contained in section 397(2) can limit of
affect the exercise of the inherent power by the High Court. Such cases would
be few and far between. The High Court must exercise the inherent power very
[753 H; 754 A-D] Amar Nath and Ors,. v. State
of Haryana & Anr. Crl. A. No. 124 of 1977 decided on 29th July, 1977;
modified & reiterated.
R. P. Kapur v. The State of Punjab,  3
S.C.R. 388, referred to.
2. Even if it is assumed that an order of the
Court taking cognisance or issuing process is an interlocutory order, the bar
created by section 397(2) will not prevent the High Court from exercising its
inherent power for stopping the criminal proceeding as early as possible
instead of harassing the accused upto the end. [754 E]
3. Ordinarily and generally the expression
"Interlocutory Order" has been understood and taken to mean as a
converse of the term final order. [735 H] 750 S. Kuppuswami Rao v. The King,
 Federal Court Saleman V. Warner, (1881) 1 C.B. 734 referred to.
The strict test for interpreting the. words
'Interlocutory Order' cannot be applied while interpreting it as appearing in
section 397(2).. The interpretation that what is not a final order must be an
interlocutory order is neither warranted nor justified. If it were so, it would
render almost nugatory the revisional power of the Sessions Court or High Court
conferred by section 397(1). Although the words occurring in a Particular
statute are plain and unambiguous they have to be interpreted in a 'manner
which would fit in the context of the other provisions of the Statute and bring
about the real intention of the legislature. There may be an order passed
during the course of a proceeding which may be not final but yet it may not be
interlocutory order pure or simple. Some kinds of orders may fall in between
the two. The bar of section 397(2) is not meant to be attracted to such kind of
intermediate orders. They may not be final orders for the purposes of Article
134 of the Constitution yet it would not be correct to characterise them as
merely interlocutory within the meaning of section 397(2). [756 F-H, 757 A--F,
759 E] Abdul Rahman v. D. K. Cassim and Sons, (1933) 60 Indian Appeals, 76,
Baldevdas v. Filmistan Distributors India (P) Ltd., A.I.R. 1970 S.C. 406 and
Parameshwari Devi v. State and Anr.  2 S.C.R. 160 and Prakash Chand
Agarwal & Ors. v. M/s Hindustan Steel Ltd.,  2 S.C.R. 405 referred
4.If a complaint is dismissed under section
203 or 204(4) or the court holds the proceedings to be void or discharge the
accused, a revision to the High Court at the instance of the complainant or the
prosecutor would be competent. It.
therefore, does not stand to reason why an
accused will have no remedy to move the High Court in revision or invoke its
inherent power for the quashing of criminal proceedings initiated on a
complaint or otherwise. [760 C-E] The court allowed the appeal, set aside the
High Court Judgment and remitted the case back to the High Court to dispose of
on merits. 1760 F]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 81 of 1977.
Appeal by Special Leave from the Judgment and
Order dated 10-1 1-75 of the Bombay High Court in Criminal Revision Application
No.: 180 of 1975.
K. Rajendra Chudhary and Mrs. Veena Devi
Khanna for the appellant.
M. N. Phadke and M. N. Shroff for the
The Judgment of the Court was delivered by
UNTWALIA J.-This is an appeal by special leave from the order of the Bombay
High Court rejecting the application in revision filed by the appellant under
section 397(1) of the Code of Criminal Procedure, 1973 hereinafter to be
referred to as the 1973 Code or the new Code, on the ground that it was not
maintainable in view of the provision contained in subsection (2) of section
397. The High Court has not gone into its merits.
It is not necessary to state the facts of the
case in any detail for the disposal of. this appeal. A bare skeleton of them
will suffice. In a press conference held at New Delhi on the 27th September,
1974 the appellant is said to have made certain statements and handed over a
751 press hand-out" containing allegedly some defamatory statements
concerning Shri A. R. Antulay, the then Law Minister of the Government of
Maharashtra. The said statements were published in various newspapers. The
State Government decided to prosecute the appellant for an offence under section
500 of the Indian Penal Code as it was of the view that the Law Minister was
defamed in respect of his conduct in the discharge of his public functions.
Sanction in accordance with section 199 (4) (a) of the 1973 Code was purported
to have been accorded by the State Government.
Thereupon the Public Prosecutor filed a
complaint in the Court of the Sessions Judge, Greater Bombay. Cognizance of the
offence alleged to have been committed by the appellant was taken by the Court
of Sessions without the case being committed to it as permissible under
sub-section (2) of section 199. Process was issued against the appellant upon
the said complaint.
The Chief Secretary to the Government of
Maharashtra was examined on the 17th February, 1975 as a witness in the Sessions
Court to prove the sanction order of the State Government. Thereafter on tile
24th February, 1975 Shri Madhu Limaye, the appellant, filed an application to
dismiss the complaint on the ground that the Court had no jurisdiction to
entertain the complaint. The stand taken on behalf of the appellant was that
allegations were made against Shri Antulay in relation to what he had done in
his personal capacity and not in his capacity of discharging his functions as a
Minister. Chiefly on that ground and on some others, the jurisdiction of the
Court to proceed with the trial was challenged by the appellant.
The appellant raised three contentions in the
Sessions Court and later in the High Court assailing the validity and the
legality of the trial in question. They are :- (1) That even assuming the
allegations made against Shri Antulay were defamatory, they were not in respect
of his conduct in the discharge of his public functions and hence the aggrieved
person could file a complaint in the Court of a competent Magistrate who after
taking cognizance could try the case or commit it to the Court of Sessions if
so warranted in law. The Court of Sessions could not take cognizance without
the committal of the case to it.
(2) The sanction given was bad in as much as it
was not given by the State Government but was given by the Chief Secretary.
(3) The Chief Secretary had not applied his
mind to the entire conspectus of the facts and had given the sanction in a
The sanction was bad on that account too.
The Sessions Judge rejected all these
contentions and framed a charge against the appellant under section 500 of the
Penal Code. The appellant, thereupon, challenged- the order of the Sessions
Judge in the revision filed by him in the High Court. As already 'stated,
without 752 entering into the merits of any of the contentions raised by the
appellant, it upheld the preliminary objection as to the maintainability of the
revision application. Hence this appeal.
The point which falls for determination in
this appeal is squarely covered by a decision of this Court to which one of us
(Untwalia was a party in Amar Nath and Others v. State of Haryana & Anr But
on a careful consideration of the matter and on hearing learned counsel for the
parties in this appeal we thought it advisable to enunciate and reiterate the
view taken by two learned judges of this Court in Amar Nath's case but in a
somewhat modified and modulated form.
In Amar Nath's case, as in this, the order of
the Trial Court issuing process against the accused was challenged and the High
Court was asked to quash the criminal proceeding either in exercise of its
inherent power under section 482 of the 1973 Code corresponding to section 561A
of' the Code of Criminal Procedure, 1898-hereinafter called the 1898 Code or
the old Code, or under section 397(1) of the new Code corresponding to section
435 of the old Code. Two points were decided in Amar Nath's case in the
following terms :- (1) "While we fully agree with-the view taken by the
learned Judge that where a revision to the High Court against the 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)." (2 The impugned order of the Magistrate,
however, was not an interlocutory order.
For the reasons stated hereinafter we think
that the statement of the law apropos point no. 1 is not quite accurate and
needs some modulation. But we are-going to reaffirm the decision of the Court
on the second point.
Under section 435 of the 1898 Code the High
Court had the power to "call for and examine the record of any proceeding
before any inferior Criminal Court 'situate within the local limits of its
jurisdiction for the purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or order recorded or passed. and
as to the regularity of any proceedings of such inferior Court", and then
to pass the necessary orders in accordance with the law engrafted in any of the
sections following section 435.
Apart from the revisional power, the High
Court possessed and possesses the inherent powers to be exercised ex debito
justitiae to do the real and the substantial 'justice for the administration of
which alone Courts exist. In express language this power was recognized and
saved in section 561A of the old Code. Under section 397(1) of the 1973 Code,
revisional power has been conferred on the High Court in terms which are
identical to those found in section 435 of the 1898 Code. Similar is the
position apropos the inherent powers of the High Court. We may read the
language (1) Criminal Appeal No. 124 of 1977 decided on the 29th July, 1977.
753 of section 482 (corresponding to section
561A of the old Code) of the, 1973 Code. It says "Nothing in this Code
shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any Court or otherwise to secure
the ends of justice." At the outset the following principles may be
noticed in relation to the exercise of the inherent power of the High Court
which have been followed ordinarily and generally, almost invariably, barring a
few exceptions :- (1) That the power is not to be resorted to if there is a
specific provision in the Code for the redress of the grievance of the
aggrieved party ;
(2) That it should be exercised very
sparingly to prevent abuse of process of any Court or otherwise to secure the
ends of justice;
(3) That it should not be exercised as
against the express bar of law engrafted in any other provision of the Code.
In most of the cases decided during several
decades the inherent power of the High Court has been invoked for the quashing
of a criminal proceeding on one ground or the other. Sometimes the revisional
jurisdiction of the High Court has also been resorted to for the same kind of
relief by challenging the order taking cognizance or issuing processes or
framing charge on the grounds that the Court had no jurisdiction to take
cognizance and proceed with the trial, that the issuance of process was wholly
illegal or void, or that no charge could be framed as no offence was made out
on the allegations made or the evidence adduced in Court. In the background
aforesaid we proceed to examine as to what is the correct position of law after
the introduction of a provision like sub section (2) of section 397 in, the
As pointed out in Amar Nath's case (supra)
the purpose of putting a bar on the power of revision in relation to any
interlocutory order passed in an appeal, inquiry, trial or other proceeding is
to bring about expeditious disposal of the cases finally, More often than not,
the revisional power of the High Court was resorted to in relation to inter-
locutory orders delaying the final disposal of the proceedings. The Legislature
in its wisdom decided to check this delay by introducing sub-section (2), in
On the one hand, a bar has been put in the
way of the High Court (as also of the Sessions Judge) for exercise of the
revisional power in relation to any interlocutory order, on the other, the
power has been conferred in almost the same terms as it was in the 1898 Code.
On a plain reading of section 482, however, it would follow that nothing in the
Code, which would include subsection (2) of section 397 also, "shall be
deemed to limit or affect the inherent powers of the High Court". But, if
we were to say that the 754 said bar is not to operate in the exercise of the
inherent power at all, it will be setting at naught one of the limitations
imposed upon the exercise of the revisional powers. In such a situation, what
is-the harmonious way out ? In our opinion, a happy solution of this problem
would be to say that the bar provided in sub-section (2) of section 397
operates only in exercise of the revisional power of the High Court, meaning
thereby that the High Court will have no power of revision in relation to any
Then in accordance with one of 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. But then, if the order assailed is purely of an interlocutory
character which could be corrected in exercise of the revisional power of the
High Court under the 1898 Code. the High Court will refuse to exercise its
inherent power. But in case the impugned order clearly brings about a situation
which is an abuse of the process of the Court or for the purpose of securing
the ends of justice interference by the High Court is absolutely necessary,
then nothing contained in section 397(2) can limit or affect the exercise of
the inherent power by the High Court. But such cases would be few and far
between. The High Court must exercise the inherent power very sparingly. One
such case would be the desirability of the quashing of, a criminal proceeding
initiated illegally, vexatiously or as being without jurisdiction. Take for
example a case where a prosecution is launched under the Prevention of
Corruption Act without a sanction. then the trial of the accused will be
without jurisdiction and even after his acquittal a second trial after proper
sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming,
although we shall presently show that it is not so, that in such a case an
order of the Court taking cognizance or issuing processes is an interlocutory
order. does it stand to reason to say that inherent power of the High Court
cannot be exercised for stopping the criminal proceeding as early as possible,
instead of harassing the accused upto the end ? The answer is obvious that the
bar will not operate to prevent the abuse of the process of the Court and/or to
secure, the ends of justice. The label of the petition filed by an aggrieved
party is immaterial. The High Court can examine the matter in an appropriate
case under its inherent powers. The present case undoubtedly falls for exercise
of the power of the High Court in accordance with section 482 of the 1973 Code.
even assuming. although not accepting, that invoking the revisional power of
the High Court is impermissible.
In R. P. Kapur v. The State of Punjab (1)
as he then was, delivering the judgment of
this Court pointed out, if we may say so with respect, very succinctly the
scope of the inherent power of the High Court for the purpose of quashing a
criminal proceeding. Says the learned Judge at pages 392-93 :--
"Ordinarily criminal proceedings instituted against an accused person must
be tried under the provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an interlocutory stage. It
is not possi- (1)  3 SCR. 388.
755 ble, desirable or expedient to lay down
any inflexible rule which would govern the exercise of this inherent
However, we may indicate some categories of
cases where the inherent jurisdiction can and should be exercised for quashing
the proceedings. There may be cases where it may be possible for the High Court
to take the view that the institution or continuance of criminal proceedings
against an accused person may amount to the abuse of the process of the court
or that the quashing of the impugned proceedings would secure the ends of
If the criminal proceeding in question is in
respect of an offence alleged to have been committed by an accused person and
it manifestly appears that there is a legal bar against the institution or
continuance of the said proceeding the High Court would be justified in
quashing the proceeding on that ground. Absence of the requisite sanction may,
for instance, furnish cases under this category. Cases may also arise where the
allegations in the First Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety, do not constitute the
offence alleged; in such cases no question of appreciating evidence arises; it
is a matter merely of looking at the complaint or the First Information Report
to decide whether the offence alleged is disclosed or not. In such cases it
would be legitimate for the High Court to hold that it would be manifestly
unjust to allow the process of the criminal court to be issued against the
accused person. A third category of cases in which the inherent jurisdiction of
the High Court can be successfully invoked may also arise. In cases falling
under this category the allegations made against the accused person do
constitute an offence alleged but there is either no legal evidence adduced in
support of the case or evidence adduced clearly or manifestly fails to. prove
the charge'. In dealing with this class of cases it is important to bear in-
mind the distinction between a case where there is no legal evidence or where
there is evidence which is manifestly and clearly inconsistent with the
accusation made and cases where there is legal evidence which on its
appreciation may not support the accusation in question.
In exercising its jurisdiction under s. 561-A
the High Court would not embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the trial magistrate, and
ordinarily it would not be open to any party to invoke the High Court's
inherent Jurisdiction and contend that on a reasonable appreciation of the
evidence the accusation made against the accused would not be sustained."
We think the law as stated above is not affected by section 397(2) of the new
Code. It still holds good in accordance with '.section 482.
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 756 ".......
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 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 in dispute, but is merely
on a matter of procedure, or (2) is made after judgment, and merely directs how
the declarations of right 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 S. Kuppuswami Rao v. The King(1) Kania C. J.,
delivering the judgment of the Court has referred to some English decisions at
pages 185 and 186. Lord Esher M. R. said in Salaman v. Warner(2) "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." To the same effect
are the observations quoted from the judgments of Fry L. J. and Lopes L. J.
Applying the said test, almost on facts similar to the ones in the instant
case, it was held that the order in revision passed by the High Court (at that
time, there was no bar like section 397 (2) was not a "final order"
within the meaning of section 205 (1) of the Government of India Act, 1935. It
is to be noticed that 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. In our opinion if this strict test were to be applied in
interpreting the words 'interlocutory order" occurring in section 397(2),
then the order taking cognizance of an offence by a Court, whether it is so
done illegally or without jurisdiction, will not be a final order and hence
will be an interlocutory one. Even so, as we have said above, the inherent
power of the High Court can be invoked for quashing such a criminal proceeding.
But in our judgment such an interpretation and the universal application of the
principle that what is not a final order must be an interlocutory order is neither
warranted nor justified If it were so it will render almost nugatory the
revisional power of the Sessions Court or the High Court conferred on it by
section 397(1). On such a 'strict interpretation,.
(1) Federal Court Reports, 180.
(2)  1 Q.B. 734.
757 only those orders would be revisable
which are orders passed on the final determination of the action but are not
appealable under Chapter XXIX of the Code. This does not seem to be the
intention of the Legislature when it retained the revisional power of the High
Court in terms identical to the one in the, 1898 Code. In what cases then the
High Court will examine the legality or the propriety of an order or the
legality of any proceeding of an inferior Criminal court ? Is it circumscribed
to examine only such proceeding which is brought for its examination after the
final determination and wherein no appeal lies ? Such cases will be very few
and far between. It has been pointed out repeatedly, vide, for example, The
River Wear Commissioners v. William Adamson(1) and R. M. D. Chamarbaugwalla v.
The Union of India ( 2) that although the word occurring in a particular
statute are plain and unambiguous, they have to be interpreted in a manner
which would fit in the context of the other provisions of the statute and bring
about the real intention of the legislature. On the one hand, the legislature
kept intact the revisional power of the High Court and, on the other, it put a
bar on the exercise of that power in relation to any interlocutory order. 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
being 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 Kuppuswami's case (supra), 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 orders.
They may not be final orders for the purposes of Article 134 of the
Constitution, yet it would not be correct to characterise them as merely
interlocutory orders within the meaning of section 397(2). It is neither
advisable, nor possible, to make a catalogue of orders to demonstrate which
kinds of orders would be merely, purely or simply interlocutory and which kinds
of orders would be final, and then to prepare an exhaustive list of those types
of orders which will fall in between the two. The first two kinds are
well-known and can be culled out from many decided cases. We may, however,
indicate that the type of order with which we are concerned in this case, even
though it may not be final in one sense, is surely not interlocutory so as to
attract the bar of subsection (2) of section 397. In our opinion it must be
taken to be an order of the type falling in the middle course.
In passing, for the sake of explaining
ourselves, we may refer to what has been said by Kania C. J. in Kuppuswami's
case at page 187 by quoting a few words from Sir George Lowndes in the case of
Abdul Rahman V. D. K. Cassim and Sons(3). The learned law Lord said with
reference to the order under consideration in that case : "The effect of
the order from which it is here sought to appeal was not to dispose finally of
the rights of the parties. It no doubt decided an important, and even a vital,
issue in the case, but it left the suit alive, and provided for its trial in
the ordinary way. Many a time a question (1) [1876-77] 2 A.C. 743.
(3)  60 Indian Appeals, 76.
(2)  S.C.R. 930.
758 arose in India as to what is the exact
meaning of the phrase "case decided" occurring in section 1 1 5 of
the Code of Civil Procedure. Some High Courts had taken the view that it meant
the final order passed on final determination of the action. Many others had
however, opined that even interlocutory orders were covered by the said term.
This Court struck a mean and it did not approve of either of the two extreme
lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd.(1) it has been
pointed out :
"A case may be said to be decided, if
the Court adjudicates for the purposes of the suit some right or obligation of
the parties in controversy :" We may give a clear example of an order in a
civil case which may not be a final order within the meaning of Article 133 (1)
of the Constitution, yet it will not be purely or simply of an interlocutory
character. Suppose for example, a defendant raises the plea of jurisdiction of
a particular Court to try the suit or the bar of limitation and succeeds, then
the action is determined finally in that Court. But if the point is decided
against him the suit proceeds. Of course, in a given case the point raised may
be such that it is interwoven and interconnected with the other issues in the
case, and that it may not be possible to decide it under Order 14 Rule 2 of the
Code of Civil Procedure as I preliminary point of law. But, if it is a pure
point of law and is decided one way or the other, then the order deciding such
a point may not be interlocutory, albeit-may not be final either. Surely, it
will be a case decided, as pointed out by this Court in some decisions, within
the meaning of section 115 of the Code of Civil Procedure. We think it would be
just and proper to apply the same kind to test for finding out the real meaning
of the expression 'interlocutory order' occurring in section 397(2).
In Amar Nath's case, reference has been made
to the decision of this Court in Mohan Lal Magan Lal Thacker v. State of
Gujarat(2) After an enquiry under section 476 of the 1898 Code an order was
made directing the filing of a complaint against the appellant. It was affirmed
by the High Court.
The matter came to this Court on grant of a
certificate under Article 134(1) (c). A question arose whether the order was a
"final order" within the meaning of the said constitutional
provision. Shelat J., delivering the judgment on behalf of himself and two
other learned Judges, said that it was a final order. The dissenting judgment
was given by Bachawat J., on behalf of himself find one other learned Judge. In
the majority decision four tests were culled out from some English decisions.
'they are found enumerated at page 688. One of the tests is "If the order
in question is reversed would the action have to go on ?" Applying that
test to the facts of the instant case it would be noticed that if the plea of
the appellant succeeds and the order of the Sessions Judge is reversed, the
criminal proceeding as initiated and instituted against him cannot go on. If,
however, he loses on the merits of the preliminary point the proceeding will go
on. Applying the test of Kuppuswami case such an order will (1) A. T. R. 1970
(2)  2 S.C.R. 685.
759 not be a final order. But applying the
fourth test noted at page 688 in Mohan Lal's case it would be a final order.
The real point of distinction, however, is to be found at page 693 in the
judgment of Shelat, J.The passage runs thus :
"As observed in Ramesh v. Patni- 3
S.C.R. 198 the finality of that order was not to be judged by correlating that
order with the controversy in the complaint, viz. whether the appellant had
committed the offence charged against him therein. The fact that that
controversy still remained alive is irrelevant." The majority view is
based upon the distinction pointed out in the above passage and concluding that
it is a final order within the meaning of Article 134(1) (c). While Bachawat
J., said at page 695 : "It is merely a preliminary step in the prosecution
and therefore an interlocutory orders." Even though there may be a scope
for expressing different opinions apropos the nature of the order which was
under consideration in Mohan Lars case, in our judgment, undoubtedly, an order
directing the filing of a complaint after enquiry made under a provision of the
1973 Code, similar to section 476 of the 1898 Code will not be an interlocutory
order within the meaning of 'section 397(2).
The order will be clearly revisable by the
High Court. We must, however, hasten to add that the majority decision in Mohan
Lal's case treats such an order as an order finally concluding the enquiry
started to find out whether a complaint should be lodged or not, taking the
prosecution launched on the filing of the complaint as a separate proceeding.
From that point of view the matter under discussion may not be said to be
squarely covered by the decision of this Court in Mohan Lal's case. Yet for the
reasons already alluded to, we feel no difficulty in coming to the conclusion,
after due consideration, 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 section 397(2).
We may also refer to the decision of this
Court in Parmeshwari Devi v. State and Anr.(1) that an order made in a criminal
proceeding against a person who is not a party to the enquiry or trial and
which adversely affected him is not an interlocutory order within the meaning
of section 397 (2). Referring to a passage from the decision of this Court in
Mohan Lals case- the passage which is to be found in Halsbury's Laws of
England, Volume 22, it has been said by Shinghal J., delivering the judgment of
the Court, at page 164 :
"It may thus be conclusive with
reference to the stage at which it is made, and it may also be conclusive as to
a person who is not a party to the enquiry or trial, against whom it is
directed." As already mentioned, the view expressed in Mohan Lal's case
may be open to debate or difference. One such example is to be found in the (1)
 2 S.C.R. 160.
760 decision of this Court in Prakash Chand
Agarwal & Ors. v.
M/s Hindustan Steel Ltd.(1) wherein it was
held that an order of the High Court setting aside an ex-parte decree in the
suit and restoring the suit to the file of the Trial Court is not a final order
within the meaning of Article 133. It is to be noticed that if the High Court
would have refused to set aside the ex-parte decree, the proceeding for setting
it aside would have finally ended and on some of the principles culled out by
the majority in Mohan Lars case, such an order would have been a final order. We
are, however, not under any necessity to enter into this controversial arena.
In our opinion whether the type of the order aforesaid would be a final order
or not, surely it will not be an interlocutory order within the meaning of
sub-section (2) of section 397 of the 1973 Code.
Before we conclude we may point out an
obvious, almost insurmountable, difficulty in the way of applying literally the
test laid down in Kuppuswami Rao's case and in holding that an order of the
kind under consideration being not a final order must necessarily be an
interlocutory one. If a complaint is dismissed under section 203 or under
section 204(4), or the Court holds the proceeding to be void or discharges the
accused, a revision to the High Court at the instance of the complainant or the
prosecutor would be competent, otherwise it will make section 398 of the new
Code otiose. Does it stand to reason, then, that an accused will have no remedy
to move the High Court in revision or invoke its inherent power for the
quashing of the criminal proceeding initiated upon a complaint or otherwise and
which is fit to be quashed on the face of it ? The legislature left the power
to order further inquiry intact in 'section 398. Is it not, then, in consonance
with the sense of justice to leave intact the remedy of the accused to move the
High Court for setting aside the order adversely made against him in similar
circumstances and to quash the proceeding ? The answer must be given in favour
of the just and reasonable view expressed by us above.
For the reasons stated above, we allow this
appeal, set aside the judgment and order of the High Court and remit the case
back to it to dispose of the appellant's petition on merits, in the manner it
may think fit and proper to do in accordance with the law and in the light of
P.H.P. Appeal allowed.
(1)  2 S.C.R. 504.