# Manoj Kumar Patel Revisionist v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-01
- **Case number:** Criminal Revision No. 1962 of 2020
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-patel-revisionist-v-state-of-u-p-ors-45971
- **Pages:** 15

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section
401/397,

&
Indian Penal Code,1860-Sections 307,352,
427, 326-A-maintainability of -trial court
refused
to
accept/admit
required
documents
on
record
u/s
311victim/revisionist
challenged
the
said
order which was interlocutory-revision
u/s 397(1) is maintainable only against
those
orders
which
termintes
the
proceeding of the main case once for allother orders passed during the pendency
of trial are interlocutory orders-revision
against interlocutory order are barred u/s
397(2) Cr.P.C.-instant revision is preferred
against the order, which is interlocutory in
nature-the same is not maintainable in the
eyes of law.(Para 1 to 31)

B. The decision of application u/s 311
Cr.P.C. do not decide anything finally or
results into the culminating the main
proceeding of the case. Order impugned
can not be construed as an order which is
a
matter
of
movement
or
as
an
intermediate or quasi final order as
discussed in the case of Amarnath and
Madhu Limay, so as to maintain the
revision against the order. (Para 10 to 30)
The revision is dismissed. (E-5)

List of Cases Cited:

## Text

_Characters 0–39,969 of 52,593. This is a partial read: ask again with offset=39969 for what follows._

1 All. Manoj Kumar Patel Vs. State of U.P. & Ors.
163
(2021)01ILR A163
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE DINESH PATHAK, J.

Criminal Revision No. 1962 of 2020

Manoj Kumar Patel ...Revisionist
Versus
State of U.P. & Ors.. ...Opposite Parties

Counsel for the Revisionist:
Sri Amarnath Tripathi

Counsel for the Opposite Parties:
A.G.A., Sri Yogesh Kumar Vaish, Sri
Yogendra Singh

A. Criminal Law - Code of Criminal
Procedure,1973-Section
401/397,

&
Indian Penal Code,1860-Sections 307,352,
427, 326-A-maintainability of -trial court
refused
to
accept/admit
required
documents
on
record
u/s
311victim/revisionist
challenged
the
said
order which was interlocutory-revision
u/s 397(1) is maintainable only against
those
orders
which
termintes
the
proceeding of the main case once for allother orders passed during the pendency
of trial are interlocutory orders-revision
against interlocutory order are barred u/s
397(2) Cr.P.C.-instant revision is preferred
against the order, which is interlocutory in
nature-the same is not maintainable in the
eyes of law.(Para 1 to 31)

B. The decision of application u/s 311
Cr.P.C. do not decide anything finally or
results into the culminating the main
proceeding of the case. Order impugned
can not be construed as an order which is
a
matter
of
movement
or
as
an
intermediate or quasi final order as
discussed in the case of Amarnath and
Madhu Limay, so as to maintain the
revision against the order. (Para 10 to 30)
The revision is dismissed. (E-5)

List of Cases Cited:

1. Sethuraman Vs Rajamanickam, (2009) 5 SCC
153

2. Goli Satyanarayan Reddy Vs G. Mahesh &
anr.(Crl. R.C. No. 175/2018)

3. Amar Nath Vs St. of Har. (1977) AIR SC 2185

4. Madhu Limaye Vs St. of Mah.(1977) 4 SCC
551

5. Prabhu Chavala Vs St. of Raj.(2016) 16 SCC
30

6. Kuppuswami Rao Vs King Kania (1949) AIR
F.C.I.

7. Mohanlal Maganlal Thakar Vs St. of Guj.
(1968) AIR SC 733

8. Parmeshwari Devi Vs St. (1977) 1 SCC 169

9. Asian Resurfacing of Road Agency Pvt. Ltd. &
anr. Vs CBI (2018) 16 SCC 299: (2020) 1 SCC
Cri 686: 2018 SCC OnLine SC 310 Pg. 316

10. Asif Hussain Vs St. of U.P. (2007) 57 ACC
1036

11. Girish Kumar Suneja Vs CBI, (2017) 14 SCC
809

(Delivered by Hon'ble Dinesh Pathak,, J.)

1. Heard Sri Amarnath, learned
counsel for the Revisionist, Sri Yogendra
Singh, learned Advocate, holding brief of
Shri Yogesh Kumar Vaish, learned counsel
for the opposite party Nos. 2 to 5, Sri Nitin
Kesarwani, learned A.G.A. for the State on
admission and perused the record on board.

2. Instant Revision has been preferred
by Manoj Kumar Patel (victim) challenging
the order dated 27.10.2020 passed by
Additional District and Sessions Judge/
164 INDIAN LAW REPORTS ALLAHABAD SERIES
Special
Judge
(E.C.
Act),
Varanasi,
rejecting the application No. 79-Kha, dated
21.10.2020, u/s 311 Cr.P.C. filed by
revisionist(herein) in Sessions Trial No.
118 of 2016 (C.N.R. No. UPVR01-0006912016) (State Vs. Vansraaj Patel and Ors.)
arising out of case crime No. 22 of 2016,
under Section 307, 352, 727, 326-A of
I.P.C., Police Station- Cholapur, District-
Varanasi.

3. Factual matrix of the case shows that
the informant and his cousin (son of his
mother's sister) Manoj Kumar(revisionist
herein) were working in the Madan Textile.
On 07.01.2016, duo, after completion of their
work, were going to the house of Manoj,
situated in Benipur Khurd by their respective
motorcycle. At about, 08:45 p.m., while they
reached in the village Benikhurd near the
house of Molaee, four persons namely
Vansraaj Patel, Vijay Patel, Ramesh Patel
and Mahendra, who were inimically with the
Manoj, had stopped the motorcycle of Manoj
and pored kerosene oil over him, with
intention to kill and set him ablaze. Seeing
the screams of Manoj, informant had raised
alarm. While he had been chased by Vansraaj
and Ramesh, he ran away after leaving his
motorcycle. In the mean-time, co-villagers
had gathered there and aforesaid four accused
fled away from the scene. With the help of
villagers fire of Manoj as well as his
motorcycle was extinguished. During process
of extinguishing, Prakash Patel and Golu
Patel were also injured. With the help of the
villagers
Manoj
was
taken
to
the
Kabirchaurra Hospital through ambulance
from where he was referred to B.H.U. and
due to paucity of place he has been admitted
in Adarsh Hospital, Sundarpur.

4. In this backdrop, Chedi Patel (first
informant)
had
lodged
F.I.R.
dated
07.01.2016 (Exhibit K-3), registered as
Case Crime No. 22 of 2016, under Section
307, 352 and 427 I.P.C.

5. After investigation, Investigating
Officer had submitted charge-sheet dated
31.01.2016. Vide order dated 29.03.2016,
learned Trial Court, had framed charges
against all the four accused persons, as
mentioned in the F.I.R., under Section
307/34, 352 and 402 I.P.C.. As the matter
proceeded,
at
hearing
stage
Manoj
Patel(victim), revisionist herein, has moved
an
application
dated
21.10.2020
(Application No. 79 Kha), under Section
311
Cr.P.C.,
beseeching
acceptance/admission
of
medico-legal
report, prescriptions, discharge-sheet of the
injured and for marking of exhibit on the
statement of victim recorded under Section
164 Cr.P.C. and also for putting a question
to the accused under Section 313 Cr.P.C.
with respect to written report (Ex. K-1)

6. Aforesaid application No. 79-Kha
dated 21.10.2020, was rejected by the
impugned order dated 27.10.2020, which is
under challenged in the instant revision.

7. After hearing the matter at length,
learned counsel for the opposite party
Nos.2 to 5 has raised preliminary objection
with regard to the maintainability of the
present revision in view of the express bar
engrafted under sub-Section 2 of Section
397 of Code of Criminal Procedure, 1973,
(In brevity Cr.P.C.) to entertain a revision
u/s 397(1) Cr.P.C. against an interlocutory
order passed during the pendency of trial of
the case. He has submitted that impugned
order dtd. 27.10.2020 passed by the Trial
Court refusing the acceptance/admission of
required documents on record as mentioned
in the Application No. 79 Kha, dated
21.10.2020, under Section 311 of Cr.P.C. is
an interlocutory order and the instant
1 All. Manoj Kumar Patel Vs. State of U.P. & Ors.
165
revision petition, which has been preferred
challenging the impugned order by which
aforesaid application filed by the present
revisionist has been rejected, is not
maintainable in the eye of law, therefore,
same may be dismissed in limine. In
support of his contention, learned counsel
for the opposite party Nos. 2 to 5 has
placed reliance on the judgement of
Hon'ble Apex Court in Sethuraman Vs.
Rajamanickam, reported in 2009 (5)
SCC 153. He has also cited the case
decided by Hon'ble The Andhra Pradesh
High Court in Goli Satyanarayan Reddy
Vs G. Mahesh & Anr., Crl.R.C. No.
175/2018, decided on 30.12.2019.

8. Learned A.G.A. for the State has
also supported the submissions advanced
by learned counsel for the contesting
respondents and submitted that revision u/s
379(1) Cr.P.C. is maintainable only against
those
orders
which
terminates
the
proceeding of the main case once for all
and other orders which are passed during
the pendency of the trial are interlocutory
orders and revision against said orders are
barred u/s 379(2) Cr.P.C. Instant revision is
preferred against the order, which is
interlocutory in nature, comes within the
teeth of the provision as embodied under
sub-Section 2 of Section 397 Cr.P.C.,
therefore, the same is not maintainable in
the eyes of law.

9. Per contra, learned counsel for the
revisionist has vehemently opposed the
preliminary objection raised by learned
counsel for the opposite party Nos. 2 to 5
qua maintainability of the instant revision
which
has
been
filed
against
the
interlocutory order, under Section 397(2)
Cr.P.C. It is submitted that rejecting the
application under Section 311 Cr.P.C.
amounts to final disposal/termination of the
interim proceeding which was initiated
during the pendency of the trial on the basis
of said application No. 79-kha dated
21.10.2020. Therefore, sanctity of the
aforesaid
impugned
order
could
be
examined by this Hon'ble High Court in
exercising it's revisional power under
Section 397/401 Cr.P.C.

10. It is further submitted that in
exercising its power under the revisional
jurisdiction Hon'ble High Court can also
exercise it's inherent power to examine the
legality and validity of the impugned order.
That apart, learned counsel for the
revisionist has tried to construed the nature
of the impunged order as intermediate
order. He contended that in the case of
Amar Nath Vs. State of Harayana,
reported in A.I.R. 1977 S.C. 2185,
Hon'ble Apex Court has held that an order
which substantially affect the right of the
parties cannot be said to be an interlocutory
order so as to attract the bar u/s 379(2)
Cr.P.C. and those orders relating to rights
or liabilities of the parties are to be termed
as intermediate order and revision against
the said orders is maintainable. It is further
contended that it is right of the victim to
maintain the admissibility of his statement
u/s 164 Cr.P.C. by getting mark of exhibit
over it and produce the medical record to
prove inflicting injuries, therefore, order
under challenged is to be construed as an
intermediate order against which revision
petition is maintainable u/s 379(1) Cr.P.C.
It is further contended that law laid down in
the case of Amar Nath (Supra) was
subsequently approved by Hon'ble Apex
Court in case of Madhy Limaye Vs. State
of Maharashtra. In support of his
contention,
learned
counsel
for
the
revisionist has cited the full Bench decision
of Apex Court in the case of Madhu
Limaye Vs. State of Maharashtra,
166 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in 1977 (4) SCC 551. He has also
placed reliance on another full Bench
decision of Hon'ble Supreme Court in
Prabhu Chavala Vs. State of Rajasthan,
reported in (2016) 16 SCC 30.

11. I have carefully considered the
rival submissions made by learned counsel
for the parties and perused the record on
board on the preliminary objection qua
maintainability of the present revision,
being barred under sub-Section 2 of
Section 397 Cr.P.C., filed challenging the
impugned order which is said to be an
interlocutory
order
in
rejecting
the
application No. 79-Kha, dated 21.10.2020
filed under Section 311 of Cr.P.C. for
taking the some of the documents on record
relating to the medical treatment of the
victim and for mark of Exhibit on the
statement of victim recorded under Section
164 Cr.P.C. and also for putting a question
under Section 313 to the accused with
respect to the written report . In the case of
Madhu Limaye (supra), Hon'ble Supreme
Court has discussed in detail with respect to
the scope of the revision, under Section
397(1) of Cr.P.C. and inherent power of
Hon'ble High Court under Section 482
Cr.P.C.
qua
interlocutory
order,
intermediate order and the final order. It is
pertenant to mention here that in the old
Cr.PC of 1898, there was no provision of
bar in filing the revision against the
interlocutory order. Subsequently, seeing
the flooded filing of revisions against all
the orders including the interlocutory order
with intention to protract the litigation,
Legislation has embarked the bar under
sub-Section 2 of Section 397 of Cr.P.C. to
curb the unnecessary filing of revisions
against each and every order passed by the
trial court so that the expeditious disposal
of cases could be ensured. Provision given
under Section 397 of Cr.P.C. is reproduced
as under:-

"The High Court or any Sessions
Judge may call for and examine the record
of any proceeding before any inferior
Criminal Court situate within its or his
local jurisdiction for the purpose of
satisfying itself' or himself as to the
correctness, legality or propriety of any
finding, sentence or order, recorded or
passed, and as to the regularity or any
proceedings of such inferior court, and
may, when calling for such record, direct
that the execution of' any sentence or order
be suspended, and if the accused is in
confinement, that he be released on bail or
on his own bond pending the examination
of the record.

Explanation:- All Magistrates,
whether Executive or Judicial, and whether
exercising original or appellate jurisdiction
shall be deemed to be inferior to the
Sessions Judge for the purpose of this
subsection and of section 398.

(2)
The
power
of
revision
conferred by sub-section (I) shall not be
exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial
or other proceeding.

(3) If an application under this
section has been made any person either to
the High Court or to the Sessions Judge, no
further application by the same person
shall be entertained by the of the them."

12. In the case of Madhu Limaye
(supra),
Hon'ble
Supreme
Court
has
approved the law laid down in the case of
Amar Nath (Supra), in which it has been
pointed out that the purpose of putting a bar
on the revisional power in relation to an
interlocutory order passed in an appeal,
inquiry, trial or other proceeding, is to
1 All. Manoj Kumar Patel Vs. State of U.P. & Ors.
167
bring about expeditious disposal of case
final.

13. Further, Hon'ble Supreme Court
has enunciated and reiterated the view, with
some modulation, taken in the case of
Amar Nath (Supra), wherein two points
were decided i.e. (i) where a revision to the
High Court against the order of subordinate
Court is expressly barred under Section
397(2) of Cr.P.C., the inherent power
contained under Section 482 would not be
available to defeat the aforesaid bar (ii)
Impugned
order
of
the
Magistrate,
however, was not an interlocutory order.
Second point, with respect to the nature of
impugned order being interlocutory order,
was accepted by Hon'ble Supreme Court
but first point, with respect to the exercise
of inherent power in the matters where bar
as contained under Section 397(2) Cr.P.C.
came into the play, has been accepted with
some modulation.

14. It is accepted by Hon'ble Supreme
Court that on plain reading of Section 482
Cr.P.C., however, it would follow that
noting in the Cr.P.C., which would include
sub-Section (2) of Section 397 Cr.P.C. also,
shall be deemed to limit or affect the
inherent power of the High Court. It is
enunciated by Hon'ble Supreme Court that
if it is said that bar under Section 397(2) of
Cr.P.C. 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 revisional powers.
Applying
harmonious
interpretation,
Hon'ble Supreme Court has opined that bar
provided in sub-Section 2 of Section 397
Cr.P.C. operates only in exercise of
revisional power of the High Court,
meaning thereby that the High Court will
have no power of revision in relation to any
interlocutory order and in the eventuality of
orders other than interlocutory order,
inherent power will come into the play,
there being no other provision of Cr.P.C.
for the redressal of grievances of the
aggrieved party. Impugned order, in case,
bring about the situation which is abuse of
process of Court or for the purpose of
securing the end of justice and interference
by High Court is absolutely necessary, then
provisions as contained under Section
397(2) can not limit or affect the exercise
of inherent power of High Court.

15. In this view of matter, by
introducing the bar under sub-Section 2 of
Section 397 Cr.P.C., legislation is intended
to curb the protracted litigation and try to
ensure early disposal of the cases.

16. Plain reading of Section 397
Cr.P.C. explicit the scope and applicablity
of revisional power that aggrieved party
can question the correctness, legality or
propriety of any finding, sentence or order,
recorded or passed and, to the regularity of
any proceeding of inferior Court. It is
significant to note that power conferred
under sub-Section 1 of Section 397 Cr.P.C.
shall not be exercised in relation to any
interlocutory order passed in appeal,
enquiry, trial or other proceeding as
embodied under sub-Section 2 of Section
397 Cr.P.C. Legislation has made the
provision of bar under Section 397(2) of
Cr.P.C. to the revisional jurisdiction of the
High Court and the Sessions Judge in
entertaining
a
revision
against
an
interlocutory order. Therefore, considering
the intention of legislation and historical
background in which bar has been imposed
u/s 397(2) Cr.P.C. to entertain revision u/s
397(1) Cr.P.C. against an interlocutory
order, interpretation of any particular order
passed during the pendency of the trial to
decide or ascertain as to whether it is a final
168 INDIAN LAW REPORTS ALLAHABAD SERIES
order or interlocutory order or intermediate
order for the purpose of maintaining a
revision under Section 397(1) Cr.P.C. must
be in consonance with the intention of
legislation. In introducing the bar under
Section 397(2) Cr.P.C. qua maintainability
of revision against the interlocutory order,
legislation was intended to expedite the
trial. It is noteworthy that interpretation of
any statute or any provision must always be
made keeping in mind the object of the
litigation and no effort should be made in
derogation to the legislative intent.

17. As per the provisions enshrined
under Section 397 (1) Cr.P.C., revision is
maintainable against all those orders who
are final in nature and the same cannot be
assailed in any appellate jurisdiction.
Appeal, in case, is provided against the
order
proposed
to be
assailed
then
preferring an appeal is the adequate remedy
available under the procedure (Cr.P.C.) to
the aggrieved persons. Addressing on the
point of limited access of the revisional
jurisdiction,
Hon'ble
Supreme
Court
enunciated in the case of Madhu Limaye
(Supra) that on such a strict interpretation,
only those orders would be revisable which
are orders passed on the final determination
of the action but are not appealable under
Section XXIX of Cr.P.C.. This does not
seem to be the intention of legislation when
it retained the revisional power of High
Court in terms of identical to one in the old
Cr.P.C. 1898.

18. Hon'ble Supreme Court has
considered the dictum of S. Kuppuswami
Rao Vs. King Kania, reported in AIR
1949 F.C. I, wherein it is stated that if their
decision, whichever may it is given, will, if
it stands, finally disposed off the matter in
dispute, I think that for the purpose of
there, 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. Hon'ble Supreme Court has
held that it is to be noticed that the test laid
down therein was that if the objection of
the accused succeeded, the proceeding
could have end but not vice versa. The
order can be said to be a final order only if,
in either event, the action will be
determined. It is further explicated that the
real intention of 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 proceeding, which
may not be final as per the Judgment
rendered by Hon'ble Supreme Court in the
case of S. Kuppuswami (supra), but, yet it
may not be an interlocutory order pure or
simple. Same kind of order may fall in
between two. By applying a rule of
harmonious constructions, Apex Court held
that bar in sub-Section 2 of Section 397
Cr.P.C. may not be attracted on such kind
of intermediate orders. They may not be
final order for the purpose of Article 134 of
the Constitution of India, yet, it would not
be correct to characterize them as merely
interlocutory order within the meaning of
Section 397(2) Cr.P.C.

19. In this view of the matter, Hon'ble
Supreme Court in the case of Madhu
Limaye (Supra) has approved the concept
of intermediate orders, which are neither
the final order nor the interlocutory order as
held in the case of Amar Nath (Supra). It
is further enunciated that it is neither
advisible nor possible to make a catalouge
of orders to demonstrate which kind of
order would be merely, purely or simply
interlocutory orders and which kind of
order would be final and then to prepare an
1 All. Manoj Kumar Patel Vs. State of U.P. & Ors.
169
exhaustive list of those types of orders
which will fall in between the two.

20. In the case of Mohanlal
Maganlal Thakar Vs. State of Gujarat,
reported in AIR 1968 SC 733, wherein,
after enquiry, an order was passed
directing to file a complaint, against the
appellant
Mohanlal
Maganlal
Thakar
which was affirmed by the High Court.
The matter came to Hon'ble Supreme
Court on the grant of certificate under
Article 134(1)(C) of the Constitution of
India. The majority view of Hon'ble three
judges has held that aforesaid order for
filing of a complaint is a final order within
the
meaning
of
said
constitutional
provision. Minority view of two Judges
had given the dissenting judgment holding
it as an interlocutory order. Enunciating
the interlocutory order, Hon'ble Supreme
Court
has
held
in
the
case
of
Parmeshwari Devi Vs. State, reported
in (1977) 1 SCC 169, 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) of Cr.P.C.

21. In a recent Judgment of ASIAN
RESURFACING OF ROAD AGENCY
PRIVATE LIMITED AND ANOTHER
VS.
CENTRAL
BEAURU
OF
INVESTIGATION, reported in (2018) 16
SCC, 299, Constitution Bench of Hon'ble
Supreme Court has considered the dictum
of Madhu Limaye (Supra) and other
cases qua bar of filing revision against the
interlocutory order under sub-Section 2 of
Section 397 of Cr.P.C. and held that
dictum of Madhu Limaye(Supra) hold the
filed and has not been in any manner
diluted. Relevant para No. 19,20,21 of the
said judgment is reproduced below:

19. It is not necessary to refer to
all the decisions cited at the Bar. Suffice it
to say that a Bench of three Judges in
Madhu Limaye [Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551 : 1978
SCC (Cri) 10] held that the legislature has
sought to check delay in final disposal of
proceedings in criminal cases by way of a
bar to revisional jurisdiction against an
interlocutory order under sub-section (2) of
Section 397 CrPC. At the same time,
inherent power of the High Court is not
limited or affected by any other provision.
It could not mean that limitation on
exercise of revisional power is to be set at
naught. Inherent power could be used for
securing ends of justice or to check abuse
of the process of the court. This power has
to be exercised very sparingly against a
proceeding initiated illegally or vexatiously
or without jurisdiction. The label of the
petition is immaterial. This Court modified
the view taken in Amar Nath v. State of
Haryana [Amar Nath v. State of Haryana,
(1977) 4 SCC 137 : 1977 SCC (Cri) 585]
and also deviated from the test for
interlocutory order laid down in S.
Kuppuswami Rao [S. Kuppuswami Rao v.
R., 1947 SCC OnLine FC 13 : (1947) 9
FCR 180] . We may quote the following
observations in this regard: (Madhu
Limaye case [Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551 : 1978
SCC (Cri) 10] , SCC pp. 554-56 & 558,
paras 6, 10 & 13)

"6. The point which falls for
determination in this appeal is squarely
covered by a decision of this Court, to
which one of us (Untwalia, J.) was a party
in Amar Nath v. State of Haryana [Amar
Nath v. State of Haryana, (1977) 4 SCC
137 : 1977 SCC (Cri) 585] . But on a
careful consideration of the matter and on
hearing the learned counsel for the parties
in this appeal we thought it advisable to
170 INDIAN LAW REPORTS ALLAHABAD SERIES
enunciate and reiterate the view taken by
two learned Judges of this Court inAmar
Nath case [Amar Nath v. State of Haryana,
(1977) 4 SCC 137 : 1977 SCC (Cri) 585]
but in a somewhat modified and modulated
form.
***

10. As pointed out in Amar Nath
case [Amar Nath v. State of Haryana,
(1977) 4 SCC 137 : 1977 SCC (Cri) 585]
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 interlocutory orders delaying
the final disposal of the proceedings. The
legislature in its wisdom decided to check
this delay by introducing sub-section (2) in
Section 397. 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 sub-section (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 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 interlocutory
order. 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 up to the end? The
answer is obvious that the bar will not
operate to prevent the abuse of the process
1 All. Manoj Kumar Patel Vs. State of U.P. & Ors.
171
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.

13. ... 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, 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. ... There
may be an order passed during the course
of a proceeding which may not be final in
the sense noticed in Kuppuswami case [S.
Kuppuswami Rao v. R., 1947 SCC OnLine
FC 13 : (1947) 9 FCR 180] , 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 subsection (2) of Section 397 is not meant to be
attracted to such kinds of intermediate
orders. ..."
(emphasis supplied)

This extract is taken from Asian
Resurfacing of Road Agency (P) Ltd. v.
CBI, (2018) 16 SCC 299 : (2020) 1 SCC
(Cri) 686 : 2018 SCC OnLine SC 310 at
page 316

20. Referring to the judgment in
Mohanlal Maganlal Thakkar v. State of
Gujarat [Mohanlal Maganlal Thakkar v.
State of Gujarat, (1968) 2 SCR 685 : AIR
1968 SC 733 : 1968 Cri LJ 876] , it was
held that the test adopted therein that if
reversal of the impugned order results in
conclusion of proceedings, such order may
not be interlocutory but final order. It was
observed: (Madhu Limaye case [Madhu
Limaye v. State of Maharashtra, (1977) 4
SCC 551 : 1978 SCC (Cri) 10] , SCC p.
560, para 15)

"15. ... In the majority decision
four tests were culled out from some
English
decisions.
They
are
found
enumerated at p. 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 [S. Kuppuswami Rao v.
R., 1947 SCC OnLine FC 13 : (1947) 9
FCR 180] such an order will not be a final
order. But applying the fourth test noted at
SCR p. 688 in Mohanlal case [Mohanlal
Maganlal Thakkar v. State of Gujarat,
(1968) 2 SCR 685 : AIR 1968 SC 733 :
1968 Cri LJ 876] it would be a final order.
The real point of distinction, however, is to
172 INDIAN LAW REPORTS ALLAHABAD SERIES
be found at SCR p. 693 in the judgment of
Shelat,
J.
The
passage
runs
thus:
(Mohanlal
case
[Mohanlal
Maganlal
Thakkar v. State of Gujarat, (1968) 2 SCR
685 : AIR 1968 SC 733 : 1968 Cri LJ 876]
, AIR p. 738, para 11)

''As observed in Ramesh v.
Gendalal
Motilal
Patni
[Ramesh
v.
Gendalal Motilal Patni, (1966) 3 SCR 198
: AIR 1966 SC 1445] the finality of that
order was not to be judged by co-relating
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.'"

This extract is taken from Asian
Resurfacing of Road Agency (P) Ltd. v.
CBI, (2018) 16 SCC 299 : (2020) 1 SCC
(Cri) 686 : 2018 SCC OnLine SC 310 at
page 316

21. The principles laid down in
Madhu Limaye [Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551 : 1978 SCC
(Cri) 10] still hold the field and have not been
in any manner diluted by the decision of four
Judges in V.C. Shukla v. State [V.C. Shukla v.
State, 1980 Supp SCC 92 : 1980 SCC (Cri)
695] or by the recent three-Judge Bench
decision in Girish KumarSuneja v. CBI
[Girish Kumar Suneja v. CBI, (2017) 14 SCC
809 : (2018) 1 SCC (Cri) 202] . Though in
V.C. Shukla [V.C. Shukla v. State, 1980 Supp
SCC 92 : 1980 SCC (Cri) 695] , order
framing charge was held to be interlocutory
order, judgment in Madhu Limaye [Madhu
Limaye v. State of Maharashtra, (1977) 4
SCC 551 : 1978 SCC (Cri) 10] taking a
contrary view was distinguished in the
context of the statute considered therein. The
view in S. Kuppuswami Rao [S. Kuppuswami
Rao v. R., 1947 SCC OnLine FC 13 : (1947)
9 FCR 180] , was held to have been endorsed
in Mohanlal Maganlal Thakkar [Mohanlal
Maganlal Thakkar v. State of Gujarat, (1968)
2 SCR 685 : AIR 1968 SC 733 : 1968 Cri LJ
876] though factually in Madhu Limaye
[Madhu Limaye v. State of Maharashtra,
(1977) 4 SCC 551 : 1978 SCC (Cri) 10] , the
said view was explained differently, as
already noted. Thus, in spite of the fact that
V.C. Shukla [V.C. Shukla v. State, 1980 Supp
SCC 92 : 1980 SCC (Cri) 695] is a judgment
by Bench of four Judges, it cannot be held
that the principle of Madhu Limaye [Madhu
Limaye v. State of Maharashtra, (1977) 4
SCC 551 : 1978 SCC (Cri) 10] does not hold
the field. As regards Girish Kumar Suneja
[Girish Kumar Suneja v. CBI, (2017) 14 SCC
809 : (2018) 1 SCC (Cri) 202] , which is by a
Bench of three Judges, the issue considered
was whether the order of this Court directing
that no court other than this Court will stay
investigation/trial in Manohar Lal Sharma v.
Union of India [Manohar Lal Sharma v.
Union of India, (2014) 9 SCC 516] (Coal
Block allocation cases) violated right or
remedies of the affected parties against an
order framing charge. It was observed that
the order framing charge being interlocutory
order, the same could not be interfered with
under Section 397(2) nor under Section 482
CrPC. [Manohar Lal Sharma case, (2014) 9
SCC 516, paras 24, 25 and 27] It was further
held that stay of proceedings could not be
granted in the PC Act cases even under
Section 482 CrPC. [Manohar Lal Sharma
case, (2014) 9 SCC 516, para 32] It was
further observed that though power under
Article 227 is extremely vast, the same cannot
be exercised at the drop of a hat as held in
Shalini Shyam Shetty v. Rajendra Shankar
Patil [Shalini Shyam Shetty v. Rajendra
Shankar Patil, (2010) 8 SCC 329 : (2010) 3
SCC (Civ) 338] as under: (Girish Kumar
case [Girish Kumar Suneja v. CBI, (2017) 14
SCC 809 : (2018) 1 SCC (Cri) 202] , SCC p.
835, para 37)

"37. ... ''49. ... (n) This reserve
and
exceptional
power
of
judicial
1 All. Manoj Kumar Patel Vs. State of U.P. & Ors.
173
intervention is not to be exercised just for
grant of relief in individual cases but
should be directed for promotion of public
confidence in the administration of justice
in the larger public interest whereas Article
226 is meant for protection of individual
grievance. Therefore, the power under
Article 227 may be unfettered but its
exercise is subject to high degree of
judicial discipline pointed out above.'
(Shalini Shyam case [Shalini Shyam Shetty
v. Rajendra Shankar Patil, (2010) 8 SCC
329 : (2010) 3 SCC (Civ) 338] , SCC p.
349, para 49)"

22. Learned counsel for the revisionist
has placed reliance on the Full Bench
judgement of Hon'ble Supreme Court in the
case of Prabhu Chavla Vs. State of
Rajsthan (Supra), wherein relevant scope
of the revisional jurisdiction under Section
397 and inherent power of Hon'ble High
Court, under Section 482 Cr.P.C. has been
discussed and held that there is no total ban
on the exercise of inherent power where
abuse of process of Court or other
extraordinary situation warrants exercises
of inherent jurisdiction and availability of
alternative remedy of a criminal revision
under Section 397, by itself cannot be a
good ground to dismiss an application filed
under Section 482 Cr.P.C. Learned counsel
for the revisionist has placed reliance on
para 6 of the aforesaid judgement, wherein
it is held that we venture to add a further
reason in support . Since Section 397
Cr.P.C. is attracted against all orders other
than interlocutory order, a contrary view
would limit the availability of inherent
power under Section 482 Cr.P.C. only to
petty interlocutory orders. A situation only
unwarranted and undesirable. Aforesaid
para no.6 as relied upon by counsel for the
revisionist is not helpful in the present
matter in holding the maintainability of the
revision against the order impunged which
is held to be interlocutory order by Hon'ble
Supreme
Court
in
the
case
of
Setthuraman(Supra). In para no.4 of the
case of Setthuraman(Supra), Hon'ble
Apex Court has held as under:-

"4. Secondly, what was not
realized was that the order passed by the
Trial Court refusing to call the documents
and rejecting the application under Section
311 Cr.P.C., were interlocutory orders and
as such, the revision against those orders
was clearly barred under Section 397(2)
Cr.P.C. The Trial Court, in its common
order, had clearly mentioned that the
cheque was admittedly signed by the
respondents/accused and the only defence
that was raised, what that his singed
cheques
were
lost
and
that
the
appellant/complainant had falsely used one
such cheque. The Trial Court also recorded
a finding that the documents were not
necessary. This order did not, in any
manner, decide anything finally. Therefore,
both the orders, i.e. one on the application
under Section 91 Cr.P.C. for production of
documents and other on the application
under Section 311 Cr.P.C. for production
of documents and other on the application
under Section 311 Cr.P.C. for recalling the
witness, were the orders of interlocutory
nature, in which case, under Section
397(2),
revision
was
clearly
not
maintainable. Under such circumstances,
the learned Judge could not have interfered
in his revisional jurisdiction. The impunged
judgment is clearly incorrect in law and
would have to be set aside. It is accordingly
set aside. The appeals are allowed."

23. Aforesaid observations made by
the Hon'ble Supreme Court left no room for
discussion to decide the nature of the order
passed under Section 311 Cr.P.C. that order
174 INDIAN LAW REPORTS ALLAHABAD SERIES
passed under the aforesaid section is an
interlocutory order.

24. In the aforesaid case accused had
moved an application under Section 91
Cr.P.C. and under Section 311 Cr.P.C.
seeking direction to produce the Bank Passbook, Income-tax account etc. and also for
recalling
the
witnesses
for
crossexamination. Hon'ble Supreme Court has
held that order rejecting the application
under Section 91 of Cr.P.c. and under
Section 311 Cr.P.C., where the orders of
interlocutory nature which cannot be
assailed in revision in view of the bar as
embodied under sub-Section 2 of Section
397 Cr.P.C.

25. In a recent judgment of this
Hon'ble Allahabad High Court, (Lucknow
Bench), decided on 12.12.2009 in Criminal
Revision No. 1640 of 2019 (Anil Kumar
Vs. State of U.P.), co-ordinate Bench of
this Hon'ble High Court, after consideration
the case of Sethuram(Supra) has held that
rejection order under Section 311Cr.P.C. is
an interlocutory order, hence, the revision
is not maintainable u/s 397(1) Cr.P.C. In
deciding the issue of maintainability of
revision against the rejection order passed
under Section 311 Cr.P.C, Hon'ble Court
has also considered the decision of
Division Bench of Allahabad High Court in
the case of Asif Hussain Vs.