# 'A V. C. SHUKLA v. STATE THROUGH C.B.I

- **Citation:** [1980] 2 S.C.R. 380
- **Court:** Supreme Court of India
- **Decided:** 1979-12-01
- **Case number:** Criminal Appeal No. 562 of 1979
- **Bench:** S. Murtaza Fazal Ali, P. N. Shinghal, D. A. Dl!SAI, c A. P. SEN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-v-c-shukla-v-state-through-c-b-i-7900
- **Pages:** 89

## Headnote

Special Courts Act, 1919-Section 11(1) and 11(2)-Scope of-Order of
Judge of Special Court directing a charge to be framed against the accusedWhethcr an interlocutory order-Appeal-If Ues against that orderInterlocutory order-What is.
Non-obstante clause-Interpretation of.
Section 11(1) of the Special Courts Act, 1979 provides that ''notwithstand·
ing anything in the Code of Criminal Procedure an appeal shall lie as of right
from any judgment, sentence or order, not being interlocutory order, of a
D
Special Court to the Supreme Court both on facts and law." Sub-section (2)
provides that "except as aforesaid no appeal or revision shall lie to any court
from any judgment, sentence or order of a Special Court."
The Special Judge appointed under the Special Courts Act, 1979 directed a
charge to be framed against the appellant under section 120B J.P.C. read with
oection 5(l)(d) and section 5(2) of the Prevention of Corruption Act, 1947.
E
At the stage of hearing, a preliminary objection as to the maintainability of
the appeal was raised on behalf of the State on the ground that the order
impugned being purely an interlocutory order within the meaning of section
11 (1) of the Act no appeal lay to this Court.
On behalf of the appellant it was contended that the term "interlocutory
order" has been used in the same sense as has been used in section 397 (2) of
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the Code of Criminal Procedure and the same construction placed by this Court
on the expression should apply in interPreting this expression, psrticularly v.hen
the Act does not give any remedy to the accused.
Per S. Murtaza Fazal Ali and Sen, JJ • .
The order passed by the Special Judge was an interlocutory order and the
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appeal filed against that order in this Court is not maintainable. { 434 AO
l(a) The expression interlocutory order in section 11(1) has been used in
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the natural sense and not in a special or in the wider sense in which .It is used 1
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in section 397(2) of the Code. [433 GJ
(b) On a true construction of section 11 (1) and taking into C011Sideration
the natural meaning of the expresoion interlocutory order there can be no doubt
that the order framing charges against the appellant under the Act was merely
oo interlocutory order which neither terminated the
proceeding nor finally
decided the rights of the parties.
0Taking its natural meaning and applying the
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V. C. SHUKLA V. STATE
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381
non·obstante clause the po8ition is that tbe provisious of the Code of Criminal
Procedure are expressly excluded by the non·obstante clause and,
therefore,
section 397(2) of the Code cannot be called into aid for holding that tbe order
impugned is not an interlocutory order. [433 B-C]
(c) The term "interlocutory order" used in section 397(2) of the Code
relates to various stages of tbe trial, namely inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a
aiminal c~ passes before it culminates in an acquittal, discharg~ or convic·
lion. H"'ing regard to the very large ambit and range of tho Code the
apre8sion interlocutory order would have to be given a broad moaning so as
to achieve the object of the Code without disturbing or interfering with the
fairness of the trial. [392 A-CJ
(d) In Amar Nath v. The State of Haryana, although this Court held that
an order summoning an accused was not an interlocutory order being a matter
of moment which decided an important aspect of the trial it was, in a' sense, a
final order which could be revised by the Sessions Judge or the High Court
under section 397 of the Code. In the circumstances of that case this Court
held thait such an order could not be said to be purely an interlocutory order.
[394 DJ
A.
B
c
Amar Nath & Ors. v. State of Haryana & Ors. [1978] 1 SCR 222, approved.
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(e) In Madhu Limaye v. State of Maharashtra this Court beld that an
order framing a charge was not an interlocutory order and, therefore, a revisioii
against such an order was competent before the Se

## Text

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380
'A
V. C. SHUKLA
v.
STATE THROUGH C.B.I.
December 1, 1979
B
[S. MURTAZA FAZAL ALI, P. N. SHINGHAL, D. A. Dl!SAI AND
c
A. P. SEN, JJ.]
Special Courts Act, 1919-Section 11(1) and 11(2)-Scope of-Order of
Judge of Special Court directing a charge to be framed against the accusedWhethcr an interlocutory order-Appeal-If Ues against that orderInterlocutory order-What is.
Non-obstante clause-Interpretation of.
Section 11(1) of the Special Courts Act, 1979 provides that ''notwithstand·
ing anything in the Code of Criminal Procedure an appeal shall lie as of right
from any judgment, sentence or order, not being interlocutory order, of a
D
Special Court to the Supreme Court both on facts and law." Sub-section (2)
provides that "except as aforesaid no appeal or revision shall lie to any court
from any judgment, sentence or order of a Special Court."
The Special Judge appointed under the Special Courts Act, 1979 directed a
charge to be framed against the appellant under section 120B J.P.C. read with
oection 5(l)(d) and section 5(2) of the Prevention of Corruption Act, 1947.
E
At the stage of hearing, a preliminary objection as to the maintainability of
the appeal was raised on behalf of the State on the ground that the order
impugned being purely an interlocutory order within the meaning of section
11 (1) of the Act no appeal lay to this Court.
On behalf of the appellant it was contended that the term "interlocutory
order" has been used in the same sense as has been used in section 397 (2) of
F
the Code of Criminal Procedure and the same construction placed by this Court
on the expression should apply in interPreting this expression, psrticularly v.hen
the Act does not give any remedy to the accused.
Per S. Murtaza Fazal Ali and Sen, JJ • .
The order passed by the Special Judge was an interlocutory order and the
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appeal filed against that order in this Court is not maintainable. { 434 AO
l(a) The expression interlocutory order in section 11(1) has been used in
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the natural sense and not in a special or in the wider sense in which .It is used 1
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II
in section 397(2) of the Code. [433 GJ
(b) On a true construction of section 11 (1) and taking into C011Sideration
the natural meaning of the expresoion interlocutory order there can be no doubt
that the order framing charges against the appellant under the Act was merely
oo interlocutory order which neither terminated the
proceeding nor finally
decided the rights of the parties.
0Taking its natural meaning and applying the
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V. C. SHUKLA V. STATE
!._
381
non·obstante clause the po8ition is that tbe provisious of the Code of Criminal
Procedure are expressly excluded by the non·obstante clause and,
therefore,
section 397(2) of the Code cannot be called into aid for holding that tbe order
impugned is not an interlocutory order. [433 B-C]
(c) The term "interlocutory order" used in section 397(2) of the Code
relates to various stages of tbe trial, namely inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a
aiminal c~ passes before it culminates in an acquittal, discharg~ or convic·
lion. H"'ing regard to the very large ambit and range of tho Code the
apre8sion interlocutory order would have to be given a broad moaning so as
to achieve the object of the Code without disturbing or interfering with the
fairness of the trial. [392 A-CJ
(d) In Amar Nath v. The State of Haryana, although this Court held that
an order summoning an accused was not an interlocutory order being a matter
of moment which decided an important aspect of the trial it was, in a' sense, a
final order which could be revised by the Sessions Judge or the High Court
under section 397 of the Code. In the circumstances of that case this Court
held thait such an order could not be said to be purely an interlocutory order.
[394 DJ
A.
B
c
Amar Nath & Ors. v. State of Haryana & Ors. [1978] 1 SCR 222, approved.
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(e) In Madhu Limaye v. State of Maharashtra this Court beld that an
order framing a charge was not an interlocutory order and, therefore, a revisioii
against such an order was competent before the Sessions Judge or the High
Court.
But in the circumstances of this case the order was not merely inter·
locutory order but partook tho nature of a final order or at any rate an intermediate order so as to be taken out of the bar contained fu section 397(2) of
the Code of Criminal Procedure. [395 H; 396 HJ
Madhu Limaye v. The State of Maharashtra, [1978J 1 SCR 749 approved.
(f) The term interlocutory order used in the Code of Criminal Procedure
bas to be given a very liberal construction in favour of the accused in order to
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ensure complete fairness of the trial because the bar contained in section 397 (3)
I?
Of the Code would apply to a variety of cases coming up before the courts not
only being offences under the Penal Code but under numerous Acts. If the
right of revision was to be barred the provision containing the bar must be
·confined within the four corners of the spirit and the letter of the law. But
:the same cannot be said of the Special Courts Act which is meant to cover only
. specified number of crimes and criminals and the objective to be attained was
.quick dispatch and speedy disposal of cases. [398 D-FJ
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State of Karnataka v. L. Munniswamy & Ors. [1977] 3 SCR 113; Parmesh·
~
wari Devi v. State & Anr. [1977] 2 SCR 160, held inapplicable.
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2. The heart and soul of the Special Courts Act being speedy disposal of
cases, the provisions of the Act must be interpreted so as to eliminate all possi-
·ble delay or JUeans of adopting dilatory tactics by plugging every possible loop-
. hole in the Act. It could not have been intended by Parliament that, while
:the Criminal l'rocedure Code gives a right of revision against an order which,
tthoogh not pure!¥ interlocutory•· ~ ~i!Mr intermediate or quasi-final, the
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382
SUPREME COURT REPORTS
(1980] 2 S.C.Rwould provide a full-fledged appeal against such an order.
It is mainly for the--
purpose of avoiding flooding of this Court with appeals against the orders of theSpecial Court framing the charges that a ,,non-obstante· clause· \\'as put in section
11 to bar appeals against any interlocutory order, \vhether it is intermediate
or quasi-final. The Act applies only to a specified number of cases which fulfil the conditions contained in it and in view of its special features the liberty
of ·the subject has been fu11y safeguarded by providing a
three-tier
system.
[408 B-F]
3. The non-obstante clause in section 11 excludes an appeal from any interlocutory orders of a Special Court because such an exclusion is fully consistent
with the object of the Act. Since the non-obstante clause expressly excludes;
the provisions of the Code of Criminal Procedure, section 397(2) of the Code
cannot be invoked because that would frustrate the very object which section·
11 seeks to subserve.
[409 F-G]
4. When the Act excludes the Code then it obviously excludes an appear
against any type of interlocutory order. The absence of revision is more than
compensated by giving the accused a right of appeal against any judgment or
order of the Special Judge as of right and on facts and law.
Secondly the triaf
is held by a sitting Judge of the High Court who would have the power of
revision if he was sitting in a High Court. Therefore it must be presumed that
whenever a Special Judge passes any ihterlocutory order or an intermediateorder like framing of charges, he would do so only with full
and
complete·
application of his mind and considering the various principles and
guidelines.-
indicated by this C,ourt. It would not be in keeping with the dignity, decorum
and status of the Special Judge to provide for an appeal even ngainst such .all'
order which he is supposed to pass with full application of mind and du<>
deliberation.
[410 B-D]
5. (a) The non-obstante clause has the effect of overriding and excluding
the provision of the Code. [ 411 Dl
Aswini Kumar Ghosh & Anr. v. Arabinda Bose & Anr. [1953] SCR
f,.
referred to.
(b) The term interlocutory is to be understood and taken to mean the converse of the term "final order". Tne essential attribute· of an interlocutory order
is that it merely decides some point or matter essential to the1 progress of the
suit or collateral to the issue sought but is not a :final decision or judgment on
the matter under issue. An intermediate order is one which is made between
the commencement
of.. an action and the entry
of the judgment. [412 C,
414 D-E]
.
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Madlm Limaye v. The State of Maharashtra, [1978] 1 SCR 749, referred to;
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)
( c) An order framing a charge being interlocutory falls squarely within the ,
)Ir.-
ordinary and natural meaning of the term "interlocutory order" as
used
in ·
section 11 ( 1) of the Act. f 414 Fl
l
Sala1nan v. Warner [1891] 1 QBD 734; Ex Parte Mo(lre in Re Faithful
[1885] 14 Q.B.D. 627; Bozson v. Altrincham Urban District Council [1903] 1
•
KBD 547; Shubrook v. Tufnell 9 Q.B.D. 621; Isaac;& Sons v. Salbstein & Anr.
[1916] 2 KBD 139; Hunt v. Allied Bakeries Ltd. (1956] 3 All. E.R. 513; Salter
Rex & Co. v. Ghosh [1971] 2 Q.B.D. 597 referred to.
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V. C. SHUKLA V. STATE
383
6. A conspectus of the decisions of this Court establishes the tallowing proA
positions: (i) an order whic;h does not determine the right of the parties but
only one aspect of tile suit or the trial is. an interlocutory order, (ii) the concept
of interlocutory order has to be explained in contra-distinction to a final order.
If an order is not a final order it wo~ld be an interlocutory order.
(iii) one
of the tests generally accept~~d by Courts is to see if the order is decided one
way it may terminate the proceedings but if decided the otheT way, the proceedings would continue because i:he term interlocutory order in the Code of CrimiB
nal Procedure bas been used in a much wider sense so :;i.s to include even intermediate or quasi-final orders.
(iv) an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally
decides the rights of the parties and puts an end to the controversy and thereby
terminates the entire proceedings before the Court so that nothing is left to be
done by the Court thereafter.
(v) Even if an Act does not permit an appeal
against an interlocutory order the accused is not left without any remedy because
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in suitable cases, the accused can always move this Court under Article
136
even against an order framing charges against him. Thus it cannot be said that
by not allowing an appeal against an order framing charges the
Act works
serious injustice to the accused. [424 E-H]
In the instant case the order framing charges against the accused is purely
an interlocutory order as it does not terminate the proceedings but
the
trial
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goes on until it culminates in acquittal or conviction. [425 B-C]
7. The argument that a st.iltute which gives a right of appeal should be
liberally construed in favour of the accused so as not to deprive him of the
right of appeal has no force· because in the instant case the right of appeal is
expressly excluded by providing that no appeal shall lie against an. interlocutory
order. Even by stretching the language of the section no right of appeal can
E
be inferred when no such right has been conferred. The non-obstante clause
cannot be construed to contain a right of appeal even against an interc:uloto1y
order. [432 G-H]
Desai, }. concurring:
1. The order framing a charge is an interlocutory order within the meaning
of seCtion 11 (1) of the Act and an appeal against such an order is incompetent
in view of the provisions contained in section 11 (2) and, therefore. the preliminary objection must be upheld. [468 E~
2. Interlocutory orders passed by a court disposing of ancillary disputes in
the course of a judicial proceeding are steps taken by the court towards the final
adjudication and for assisting the parties in the prosecution of their cases. They
regulate the procedure only and do not affect any right or liability of the
parties. An order does not cease to be an interlocutory order merely because
it disposes of a certain aspect of the controversy between the parties. The test
of finality is whether the onler finally disposes of the right of the parties. The
finality must be a finality in relation to the suit. If after the order the suit
is still a live suit and the rights of the parties are stilI to be determined, no
appeal lies against it under section 109A of the Code. Even if the
order
decides an important and even a vital issue in the case but leaves the suit alive
and provides for its trial in the ordinary way it would still not be a final order.
Another test is that the decision, whichever way it is given,'if it finally disposes
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SUPREME COURT REPORTS
(1980] 2 S.C.R.
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of the- matter in dispute it is final. The decision, if given in one way .it .will
finally dispose of the matter in dispute, but if given in another it will allow the
action to go on it is not final but interlocutory. [454 E; H; 455 B-D; 456 DJ
Kuppuswami Rao v. The King [1947] F.C.R. 180; Abdul Rahmaii. v. D. K.
Cassim & Sons 60 I.A. 76; Mohammad Amin Brothers Ltd. &
Others v.
Dominion of India and Others [1949-50] FCR, 842; Salter Rex & Co. v. Ghosh
,II
[1971] 2 W.B.D. 597 referred to.
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3. Jn tbe context of section 397(2) read witb section 482 of tbe Code this
Court, with a view to providing a judicial umbrella of active supervision for
reachlng Possible correctible injustice by activist attitudes and pragmatic inter·
pretation found a tbird class of orders neitber interlocutory nor final but intermediate and therefore outside tbe bar of section 397(2) of the Code of Criminal
Procedure. But the test remained unaltered that every
interfocutory order,
merely because it disposes of an aspect in the course of a pCnding proceeding
even adversely affecting a party for the time being would not be something other
than interlocutory. To be specific the earlier test is not departed fro1:11 but the
power Of supervision sought to be COll;S-°1lCted, ~
widened by asce:rfaining_ a.
third class of orders namely, intermediate orders which are neither interloCUtory
nor final. [462 B-D]
Amar Nath & Ors. v. State of Haryana & Ors. [1978] 1 S.C.R. 222; Mohan
Lal Magan Lal Thacker v. St11e of Gujarat [1968] 2 S.C.R- 685~ Madhu Liniay'I
v. The State of Maharashtra [1978] l S.C.R. 749; Parmeshwari Dei·i v. State
& Am. [1977] 2 S.C.R. 160 referred to.
·
4. (a)There is n0 force in tP,e contention that frai;n.Jng of a char&e concludes
an enquiry anterior to it and that it is likely to result in the deprivation of the
liberty of the .accused because be is asked to face the trial.
[463< CJ ,
(b) The framing of a coorgo is an intimation to the accused of what precise
offence or what allegations of facts he is called upon to meet. Its object is to
warn an accused of the case he is to answer. The order framing a charge
would be an intermediate order and not an interlocutory order. In the course
of a trial of a civil or criminal proceeding there can be no stage where an order
can be made without bringing to bear on the subject an active judicial mind
aad judicially determining the dispute. Any such dispute if mechanically disposed of may warrant interference. Therefore emphasis was laid on the court
expecting it to 1eriously apply its mind at the stage of framing a charge. It
does not make the order framin11 a char110 anythnig otber than an interlocutory
order. 1463 G; 464 F-Gl
B. N.' Srikantiah & Ors. v. Th• State of Mysore [1959] S.C.R. 496 at 503;
State of Karnataka v. L. Afuni SwanJi & Ors. [1977] 3 S.C.R. 113 and Century
Spinning and Manufacturing Co. Ltd. v~ State of Maharashtra Al.R.
1972
S.C. 545, referred to.
(c) If framing a charge is an interlocutory order, excluding
the nonobstante clause, no appeal would lie against such an order under section 11 of
the Act because there is a specific provision under section ll (2) that except as
provided in section 11 ( 1) no appeal or revision shall lie, to any court from any
judgment, semteuce 9r order of Special Court. [465 IJ..EJ
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V. C. SHUKLA V. STATE
385
( d) It is well settled that there is no inherent or common law right of
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appeal in a anbject and appeal is the creature of statute. Therefore the right to
appeal can bo enjoyed only within the strictly demarcated limits conferring such
right of appeal. [465 El
In the in1tant case tho order under challenge being one passed by tho Sfecial
Court set up under the Act an appeal from such an order would only be competent if 'it squarely falls within section 11(1). Therefore, there is no gainB
.. yiog the fact that if the order sought to be appealed against is an interlocutory order, excluding the non-obstante clause by the main provision of section
11(1), the present appeal would be incom]l<ltent. [465 OJ
5. Tho substantive provision of section 11(1), while providing for an appeal
against any judgment, senten~"';e or orde~ made by ai Special Court, circumscribed
the righl to appeal against the orde,rs by excluding therefrom orders which are
interlocutory. [466 DJ
6. When the non-obstante clause provides for "not-withstanding- anything
in the Code" the expression as per grammatical constc:uction1 would mean that
•omething conjained in the Code is to be excluded while examining the scope
and content of the substantive provision of section 11 (I). There is nothing in
the Code providing for an appeal against an interlocutory order. While enacting the Act, the Parliament was conscious of appeals and revisions under the
Code and that is manifest from the language in section 11 (2) of the Act. If
there was no provision in the ·Code providing for an appeal agatinst any inte1rlocutory order in any proceeding under the Code, it is inconceivable ·that such a
widt!r jurisdiction of appeal was sought to be enacted under the substantive
provision of section II ( 1). [ 467 B-0]
7. The paramount object in enacting the Special Courts Act was to bring the
prosecutions to a speedy termination and commission of offences should be
judicially determined with the utmost dispatch. This being the objective of the
Act, construction of its provisions must receive such interpretation as would
facilitate the achieving of the object underlying it and not frustrating it. That
would stand thwarted if against every interlocutory order an appeal to
the
highest court as a matter of right, both of law and fact,, can be filed. [467 Bl
8. The argument that there is unfairness in the procedure is utterly unreal
heeause the trial is by a sitting judge of the High Court to be :>ppointed with
the concurrence of the Chief Justice of India. The Special Court \VOuld always
be amenable to the jurisdiction of tW. Court under Article 136. [468 B]
9. There is no substance in the contention that in narrowly interpreting the
expression "interlocutory order" in section 11 (1) door may not be throv.·n open
for introduction of a procedure lacking in fairness and likely to. result in the
·'deprivation of personal liberty. [468 DJ
Sinehal J. (dissenting).
1. The impugned order is not an interlocutory order. The accused is enc
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titled as of right to prefer an appeal. [ 452 G]
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2. Section 9 of tho Act provides that a Special Court could, in the trial of
cases faIJing within its juriidiction, follow fhe, procedure prescribed by the Code
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386
SUPREME COURT REPORTS
[1980] 2 S.C.R.
of Criminal Procedure for the trial of warrant cases before a Magistrate. Section
239 is a valuable provjsion to the advantage of the accused because it envisages
a careful and objective consideration by the Judge whether the charge against
the accused is groundless or whether there is ground for presuming that he has
committed an offence.
Similarly when an order for the framing of a· charge
under section 240 is passed it amounts to a decision that the accused is not
entitled to discharge· under section 239, that there is ground for presuming that
he has committed an offence triable· under Chapter XIX and that he should
be called upon to plead guilty of it. Therefore, an order for framing of the
charge is a serious matter for the accused,
[434 H; 435 F·H]
3. Section 9 of the Special Courts Act does not provide tha.t
an
appeal
against the order of the Special Court sha11 be heard and decided according to
the procedure laid down in the Code. Section 11 which deals with appeals starts
with a non-obstante clause. Neither section 11 nor any other section states that
the Code shaJl apply to the hearing of an appeal.
At any rate the Code has
no application in so far as the right of appeal and the fonn
of appeal are
concerned.
f436 C & El
4. It is true that there is no right of appeal against an interlocut'1ry order
under section 11 of the Act.
The clear propositions laid down by this Court
on the meaning of the words_ "fina.1" and "interlocutory" are (i) that an order
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may be "final" for one purpose and "interlocutory" for another and (ii) that
an order may be final as to a part and inter-locutory as to a part. The meaning
of the two \\'Ords has to be determined in relation to the particular purpose for
which it is required to be given. [436 G; 438 G]
Moha11 Lal Magan Lal Tl!aker v. State of Gujarat, [1968] 2 SCR 685 referred
to.
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(iii) An order may also be conclusive with refNence to the stage at which
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it is made.
Parameswari Devi' v. State [1977] 2 S.C.R. 160 referred to.
(iv) The expression 'interlocutory order" has been used in section 397(2)
of the Code in rL restricted sense.
It denotes orders of a purely interim or
temporary nature which do not' decide or touch the importan~ rights or liabilities
of the parties and that any order which substantively affects the rightc; of the
accused is not an interlocutory order.
[441 A-B]
Amar Nath and others v. State of Haryana and others (1976] 1 S.C.R. 222
referred to.
On this reasoning the order for the framing of' a charge aga.inst the accused
in this case ca·nnot be said to be an interlocutory order. [442 A]
(v) An order rejecting the plea of the. accused on a
point which,
when
. accepted, will conclude a particular proceeding is surely not an interiocutory
order within the meaning of section 397(2) of the· Co<le.
(444 A]
5. The revisional power of the Court concerned under section 397( 1) of the
Code will be rendered nuga.tory if the plea that an order framing or directing
the framing of a. charge against an accused is an interlocutory order and is
therefore beyond the reach of that sub-section by virtue of sub-section (2) is
accepted. The nature of that order cannot be determined merely with reference
to the eventuality that the accused may ultimately be acquitted on the completion of the trial.
There is no reason why section 397 should be so narrowly
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V. C. SHUKLA v. STATE
387
construed and why the real nature of the order framing the charge should be
A.
taken Jo be merely interlocutory order beyond the reach of the revisionai power
conferred on the Court concerned under section 397 when it cannot be denied
that if the contention of the accused against the order framing the charge
against him were allowed, that would, by itself, have concluded the proceeding
against him.
The object of section 397 ( 1) of the Code is to provide relief to
the aggrieved party where it is deserved, only if the order complained of is not
of an interlocutory nature. Section 11 of the Act is in that respect quite similar
8·.
in purpose and content to section 397 of the Code and there is no reason why
the same meaning and effect should not be given to it.
[444 C-F]
S. Kuppu,~wa;rii P.ao \, The .King (1947] F.C.R. 180; Mohd. Anlin Bros. v.
Donzinior, of Jndio [J949J FCR 842 held inapplicable.
6. The purpose of an appeal which is in the nature· of a judicial exan1ination of a. decision by the higher court of a decision of an inferior court is to
C
rectify any possible error in the order under appeal.
Jn that sense the revisional jurisdiction is regarded as a part and parcel of the appellate jurisdiction.
Statutes pertaining to a right of appeal should be liberally construed and any
doubt rega·rding that right should be resolved in favour of the· right.
[445 H]
7. Section 11 of the Act gives a right of appeal against "any order" of a
Special Court and not merely from its "final order''. It is well settled that the
D 1
use of the words "any order'' in Article 136, along with the other difference of
language, had "greatly widened'' the scope of Article 136 in regard to the appeal
thereunder.
Section 11 of the Act not only grants that remedy in the case of
"any order" but allows it as a matter of right whereas the remedy under Article
136 is in terms discretionary. Section 11 takes care to state categorically that
the appeal thereunder shall relate both to the facts and the law.
It is, therefore, a liberal and beneficial provision in favour of the aggrieved
party
and
K
excels the remedy under section 397 of the Code. [446 D; 17-01
8. The correct way of interpreting a provision of law with a non-obstante
clause is to first a~certain what the enacting part of the section provides according to the natural and ordinary meaning and the non-cbstantc clause is to be
understood as operating to set aside as no longer valid anything contained in
the relevant existing la\VS \vhich is inconsistent with the ne\V enactment. [447 B-Q]
y
Aswini K1onar and another v. Arabinda Bose and another [1953] S.C.R. 1.
9. The revisional power under the Code is discretionary and is not available
to an aggrieved party as of right.
The remedy by way of a revision petition
has been hedged round with certain limitations and restrictions, whereas sectionl
11 ensures a right of appeal "both on facts and on law··. What section 11 does
is to do away \Vith the power of revision under the Code (sub-section 2) and to
sllbstitute for it an unlimited right of appeal against any judgment, sentence or
order of the Special Court so long as the impugned order is not of an interlocutory nature. The aggrieved party has really lost nothing to which it \vould
have been entitled under the Code for Section 397 (2) also specifically
states
that the power of revision conferred by sub-section ( 1) shall not be exercised
in rela.tion to an interlocutory order. The net effect of the non-obstante clause,
therefore, is to widen the remedy available under lhe Code.
[447 H; 448 A·B1]
10. While under the Code two correctional remedies are open to the aggrieved party-one by \Vay of an appeal and other by way of petition [or re\·ision
.. B
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SUPREME COUR f REPORTS
[1980) 2 S.C.R.
which however is a remedy within the discretion of the High Court or
the
Sessions Judge-section 11 of the Act makes any and every judgment, sentence
or order appealable so long a-s the order is not of an interlocutofy nature. In
respect of an interlocutory order, however, no remedy by way of appeal
or
revision is permissible under the Code and the position in that respect is not
worse under section 11 of the Act.
The right of appeal under section 11 is,
therefore, wider than the appellate 'and revisional remedies provided by
the
Code. [448 G·HJ
In the instant c.,e the decision which the Judge took in making the im·
pugned order clearly dealt with at least one important stage and aspect of
the ca.e against the accused finally and once for all. That order clearly put
him to full course of trial and there is no reason why it should not be treated
as "any order" against which he is entitled to appeal under section 11 of the
Act and why it should be considered to be a merely interlocutory order. [450 B·OJ
11. An order framing a charge affects a person's liberties substantially and
it is the duty of the Court to consider judicially whether the material warrants
the framing of the charge. [451
B~
1 12. The question whether an order is final or interlocutory is not to
be
·determined merely frnm the character of the proceedings id "'hich it is entered
but from the character of the relief granted or refused.
[451 H]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 562
of 1979.
From the Order dated 17-9-1979 of the Special Court at New Delhi
in Criminal Case No. 1 /79.
P. R. Mridul, and 0. P. Sharma for the Appellant.
Soli J. Sorabjee, Solicitor General of India, R. N. Sachthey, Girish
Chandra, Bipin Behari Lal and Miss Ni/am Grovei' for the Respondent.
.l?
The Judgment of S. Murtaza Fazal Ali and A. P. Sen. JJ. was, deli-
.H
vered by Fazal Ali, J.
D. A. Desai gave' a separate opinion and P. N.
Shinghal, J. gave a dissenting opinion.
FAZAL ALI, J.-This appeal is directed against an order dated 17th
September 1979 passyd by Justice J oohi, Special Judge appointed unde.r
the Special Courts Act, 1979 (No. 22 of 1979) (hereinafter to be
referred as the 'Act') by which the learned Judge directed a charge to
be framed against the appellant under s. 120B of the Indian
Fenal
Code read with s. 5(1) (d) ands. 5(2) of the Prevention of the Corrnption Act, 1947 and also under s. 5(2) .read withs. 5(1)(d)
of
the said Act.
This appeal has been filed by the appellant under section 11 (1) of the Act.
The appeal was placed for preliminary hearing before a Division Bench of this Court where Mr. Soli Sorabjee, the
Solicitor General of India, put in appearance on behalf of the respon-
·-!
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t
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v. c. SHUKLA v. STATE (Fazal Ali,!.)
389'
dent and raised a preliminary objection to the maintainability of the
appeal.
The preliminary objection raised by th~ Solicitor General was
mainly on the ground that the order impugned being a purely interlocutory' order within the meaning of s. 11 (1) of the Act, no appeal lay to
this Court.
The Division Berich in view of the naturtj of the substantial question of law involved referred the case to a larger Bench even
at the stage of preliminary hearing because if the· appeal was admitted
for hearing, it would impliedly involve a decision on the question, ra1sed
by the Solicitor General by way of a preliminary objection.
We. have heard the counsel for parties at very great length
on
the vari~us aspects of the respective points of view put forward by the
counsel 'for the parties.
It is manifest that if the preliminary objection raised by the respondent finds favour then the appeal has to be
dismissed in limine as being not maintainable.
If, however,
the
preliminary objection is overruled and the contention of the appellant
is accepted, the appeal will have. to be admitted to hearing.
In view
of the .limited nature of the scope of the appeal we find it wholly unnecessary to go into the facts, circumstances or the evidence on a consideration of which .the Special Judge. has based bis order because that
can be done. only' if the appeal iS to be heatd·on merits.' ·
The sheet-anchor. of thl' argument of Mr. Mridul, counsel for the
appellant, appears to b~ that. the Special Goμrts Act beil]g a statute in
pari materia, the-· Criminal Procedure. Code, th.e expressions used and
the meaning of the words employed in the Act must have the same
meaning imd signification as used in the various provisions of the
Cri.miria'I" Procedure Code of 1973 . (hereinafter to be referred to as
the 'Code').
It was submitted in the first instan~ that on a proper
construction of s. 11 of the Act, the word 'interlocutory Qfder' has
been ui;ed exactly in the same sense as the same word has been, used in
s. 397 (2) of the Code.
The argument merits serious consideration
and has various phases and facets to be gone into after a proper examination of the scheme and object of the Code and the Act.
To begin
with, it would appear that the Code has made revolutionary changes in
the Criminal Procedure Code of 1898 and has inserted additional provisions with a view to ensure speedy justice without impeding fairness
; of the trial.
In this connection, the relevant PQI!ions of the Statement
of Objects and Reasons of the Code may be extracted :-
"The amendments of 1955 were! extensive and
were
intended to simplify procedures and speed up trials as far
as possible.
In addition, local amendments were made by
State Legislatures, of which the mdst important were those
B'
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SUPREME COURT REPORTS
[1980] 2 S.C.R.
made to bring abont separatiO!ll of the Judiciary from the
Executive.
Apart from these amendments, the provisions
of the Code of 1898 have remained practic~lly uncl1anged
through these decades and no attempt was made to !rave a
comprehensive revision of this old Code till the Central Law
Commission was set up in 1955. ·
........ The main task of the Commission was to suggest
measures to remove anomalies
and ambiguities
brought
to light by conflicting decisions of the High Courts or otherwise, to consider local variations with a view to securing and
maintaining uniformity, to consolidate laws wherever possible
and to suggest improvements where necessary.
Suggestions
for improvements received from various sources were considered by the Commission.
3. The recommenclations of the Commission were examined carefully by the Government, keeping in view, among
others, the following basic considerations :-
(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;
'(ii) every effort should be made to avoid delay in investi·
gation and trial which is harmful not only to the individuals involved but also to society; and
·(iii) The procedure should not be complicated and shuuld,
to the utmost extent possible, ensure fair-deal to the
poorer sections of the community.
The occasion has been availed of to consider and adopt
where appropriate suggestions received from other quarters
based on practical experience of investigation and the working of criminal courts.
In addition to ensuring fair deal to the accused, separation
as provided for ill the Bill would ensure improvement in the
quality and speed of disposal, as all Judicial Magistrates
would be legally qualified and trained persons working under
close supervision of the High Court.
5. Some of the more important changes proposed to be
made with a view to speeding up the dispqo;al of criminal
a:ases are ·:-
\.
I
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,
~· l
y
>
\
v. c. SHUKLA v. STATE (Fazal Ali,].)
(a) the preliminary inquiry which precedes the trial by a
Court of Session, otherwise known as committal proceedings, is being abqlished as it does not serve any
useful purpose and has been the cause of considerable delay in the trial of offences;
( d) the powers of revision against interlocutory orders are
being taken away as it has been found to be one of
the main contributing factors in the delay of disposal
of criminal cases;
"
391
A perusal of the Objects and Reasons clearly shows that the Parliament wanted to implement the recommendation of the Law CommiSsion as far as possible.
In the instant case, we are mainly concerned
with two important changes which have been made in the Code.
In
the first place, as para· 5 of the Objects and Reasons shows !ha~ the
preliminary inquiry which preceded the trial b}'I a court 0£ se5sions was
knDWll as committal proceedings has been abolished and the Magistrate
before wh~ the chargesheet is submitted has merely to find
out
whelber Ute offence is exclusively triable by a session court and, if
so, to send the case to the sessions court.
This was obviqusly done
to cut down considerable delay and duplication in the trial of seriolJ!i
criminal offences.
We have laid special stress on this part of the
amendment because a serious argument was built up by the learned
counsel for the appellant on the question as to when the trial in a
warrant case starts. We shall deal with this aspect of the matter a
little later. Secondly, para 5(d) of the Objects and Reasons emphasiseS
the fact that powers of revision against interlocutory_ orders have been
taken away as they were found to be the main contributing factor i.t1
the delay of the disposnl of criminal cases. It may be mentioned here
that in the Codes of Criminal Procedure, prior to the Code of 1973,
the wortl 'interlocutory order' was not used at all and, therefore, if has
to be interpreted for the first time only after the Code came into
force".
Section 397(2) of the Code which contai~s the powers of revision against interlocutory orders runs thus :
"(2) The powers ofrevision conferred by sub-section (I)
shall not be exercised in relation to any intedocutory order
passed in any appeal, ir;quiry, trial or other proceeding."
It will be important to note that the word 'interlocutory order' used
in this sub-section relates to various stages of the trial, namely, appeal,
A
B
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B
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SUPREME COURT REPORTS
(1980] 2 S.C.R.
inquiry, trial or any othe.r proceeding.
The object seems to be to cutdown the delays in stages through which a criminal case passes before
it culminates in an acquittal, discharge or conviction.
So far as the
Code of Criminal Procedure, 1973 is concerned, it has got a wide and
diverse area of jurisdiction inasmuch as it regulates the procedure of
trial not only of the large number of offences contained in the Indian
Penal Code but also in other Acts and statutes which apply the CC)!:le
of Criminal Procedure or which are statutes in pari materia the Code.
Having regard, therefore, to the very large ambit and range of the Code,
the expression 'interlocutory order' would have to be given a broad
meaning so as to achieve the object of the Act without disturbing or
interfering with the fairness of the trial. Fortunately, however, there
are \1. few decisions which have interpreted the expression 'interlocutory
order' as appearing ins. 397(2) of the Code.
Before we come .to the
d~cisions, .certain features may be noticed. here. In the first place, the.
concept of appeal against interlocutory order seems to be by an~ large
foreign to the scl1eme of the Code or for that matter the sche!lle o~ ihe
Code of Cfiminal Proced~re right from, 1872 uptodate,
Appeal' has
been· pr9vid~d only against' fulal ~ders and not against in(erlocutory
o.rders.
Inste~d of appeal, the Code of 18~8 as also the, Code of 1812
contained powers of revision which vested in_'the .High, Court .to reyise
any order pas.sect b:r.a criminal court., In the .. previous Co<jes,''the:i"\,r1iJ.
'jriterlocutory' was not used.
Therefore, the revisi6na1 juris.dkti?n was·
Wide enougli to' embrace within its scope any order whether inuorloe,u!ci_ry,
intermediate or final.
Secondly, by virtue of scores of decp;iOl)S of tp,e,
various High Courts in India and the Privy Council, it was well settled
that the revisional jurisdiction possess,;a 'by the Sessions J~dge al)d the
High Court could be exercised only to. examine the Jegaiity or propriety
cif the order impugned and more particularly the Courts' were to interfere only if there was an error of Jaw or procedure. Previous to the
Code, the pCJIWers of revision enjoyed by the Sessions Judge or the
Di~tfi~t Magistrate o.r the Chief Judicial Magistrat~ through various
amendments were rather limited whereas the power of High Court was
wide and unlimited.
Apart from the revisional power tho High Court
under the Code of 1898 possessed an inherent power to pass order
ex debito justitiae in order to prevent abuse of the process of the court.
This was a special power which was to be exercised by the High Court ·
to meet a particular contingency not expressly> provided for in the Code
of Criminal Procedure. Even in the present Code, the inherent power
of the court has been fully retained under sec. 482 which runs thus :-
"482. Nothing in this Code shall be deemed to limit o.r
affect the inherent powers of. the High Court to make · su6Ji
' -'
' .
~
j
V. c. SHUKLA v. STATE (Fazal Ali.