# AMAR NATH AND OTHERS v. STATE OF HARYANA & OTHERS

- **Citation:** [1978] 1 S.C.R. 222
- **Court:** Supreme Court of India
- **Decided:** 1977-07-29
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amar-nath-and-others-v-state-of-haryana-others-7265
- **Pages:** 9

## Headnote

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222
AMAR NATH AND OTHERS.
v.
STATE OF HARYANA & OTHERS
July 29, 1977
[N. L. UNTWALIA AND S. MURTAZA FAzAL ALI, JJ,]!
' Code of Crin1inal Procedure, 1973-Ss. 397 and 482-Scope of.
Interlocutory order-What is-Order co1npelling persons to face trial without proper application of nlind by the Magistrate-If an interlocutory order.
In the F.l.R. filecl by the complainant, a number of persons, including the
appellants, were mentioned as participants. in a murder. On perusal of the final
report submitted by the Police, the Judicial Magistrate set them at liberty. The
complainant's revision petition against the order of the Judicial 1'.lagistrate Was
dismissed by the Additional Sessions Judge "'hereupon the complainant filed a
regular complaint before the Judicial Magistrate against all the accused, including the appellants.
When Otis complaint \Vas dismissed by the Judicial Magistrate, the complainant went in revision before the Sessions Judge \vho remanded
the case to the Judicial Magistrate for further enquiry. The Judicial Magistrate
then straightaway issued summons to the appellants.
Dismissing the appellant's petition under ss. 397 and 482 of the Code of
Criminal Procedure, 1973, for quashing the order of the Judicial Magistrate,
the High Court held that the Judicial Magistrate's order beihg an interlocutory·
order, a revision to the High Court was barred by s. 397(2) and that since the
revision was barred, the Court could not take, up the case under s. 482 of the
Code.
Allowing the nppeal and remanding the case to the High Court,
HELD : The impugned order of the Judicial Magistrate could not be said
to be an interlocutory order and does not fall within the mischief of s. 397(2)
and, therefore, a revision against this order was fully competent under s. 397( I)
or under s. 482 of the Code because the scope of both the sections in 'a matter
of this kind is more or Jess the same.
r229H]
I. Where a revision to the High Court agaiilst thei order of the Subordinate
Judge is expressly barred under s. 397(2) the inherent powers contained ins. 482
would not be available to defeat the bar contained ins. 397(2). Section 482
contains inherent powers of the Court and does not confer any new powers but
preserves the powers which the High Court already possessed.
A harmonious
construction of ss. 397 and 482 would lead to the. conclusion that, where
a
particular order is expressly barred under s. 397(2) and cannot be the subject
of revision by the High Court, the provisions of s. 482 would not apply. It is
\\-'ell settled that the inherent powers of the Court can ordinarily be exercised
when there is no express provision on the subject-matter.
Where there is an
express provision, barring a particular remedy, the Court cannot resort to the
exerdse of inherent powers.
r224G-H1
2. The term "interlocutory order" is a term of well-known legal significance
\.Vhich has been used in various statutes.
Decided cases have laid down that
interlocutory orders to be appealable must be those which decide the rights and
liabilities of the parties concerning a particular aspect.
The term "interlocutory
order" ins. 397(2) has been used in a restricted sense. and not in any broad and
artistic sense. It merely denotes orders of a purely interim or temporary nature
\vhich do not decide or touch the important rights or liabilities of the parties.
Any order which substantia1ly affects the right of the accused, or dec1jes certain
rights of the parties cannot be said to be an interlocutory order so as to bar a
revision to the High Court against that order, because that would be against
the very object which formed the basis for insertion of this provision in s. 397
of the c·ode. For instance, orders summoning witnesses, adjourning ewes, passtng
AMAR NATH v. HARYANA (Fazal Ali, J.)
223
orders for bail, calling for reports -and such other steps in aid. of the. pending
A
proceeding, may no doubt amount to interlocutory orders agan~st which
no
revision would

## Text

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AMAR NATH AND OTHERS.
v.
STATE OF HARYANA & OTHERS
July 29, 1977
[N. L. UNTWALIA AND S. MURTAZA FAzAL ALI, JJ,]!
' Code of Crin1inal Procedure, 1973-Ss. 397 and 482-Scope of.
Interlocutory order-What is-Order co1npelling persons to face trial without proper application of nlind by the Magistrate-If an interlocutory order.
In the F.l.R. filecl by the complainant, a number of persons, including the
appellants, were mentioned as participants. in a murder. On perusal of the final
report submitted by the Police, the Judicial Magistrate set them at liberty. The
complainant's revision petition against the order of the Judicial 1'.lagistrate Was
dismissed by the Additional Sessions Judge "'hereupon the complainant filed a
regular complaint before the Judicial Magistrate against all the accused, including the appellants.
When Otis complaint \Vas dismissed by the Judicial Magistrate, the complainant went in revision before the Sessions Judge \vho remanded
the case to the Judicial Magistrate for further enquiry. The Judicial Magistrate
then straightaway issued summons to the appellants.
Dismissing the appellant's petition under ss. 397 and 482 of the Code of
Criminal Procedure, 1973, for quashing the order of the Judicial Magistrate,
the High Court held that the Judicial Magistrate's order beihg an interlocutory·
order, a revision to the High Court was barred by s. 397(2) and that since the
revision was barred, the Court could not take, up the case under s. 482 of the
Code.
Allowing the nppeal and remanding the case to the High Court,
HELD : The impugned order of the Judicial Magistrate could not be said
to be an interlocutory order and does not fall within the mischief of s. 397(2)
and, therefore, a revision against this order was fully competent under s. 397( I)
or under s. 482 of the Code because the scope of both the sections in 'a matter
of this kind is more or Jess the same.
r229H]
I. Where a revision to the High Court agaiilst thei order of the Subordinate
Judge is expressly barred under s. 397(2) the inherent powers contained ins. 482
would not be available to defeat the bar contained ins. 397(2). Section 482
contains inherent powers of the Court and does not confer any new powers but
preserves the powers which the High Court already possessed.
A harmonious
construction of ss. 397 and 482 would lead to the. conclusion that, where
a
particular order is expressly barred under s. 397(2) and cannot be the subject
of revision by the High Court, the provisions of s. 482 would not apply. It is
\\-'ell settled that the inherent powers of the Court can ordinarily be exercised
when there is no express provision on the subject-matter.
Where there is an
express provision, barring a particular remedy, the Court cannot resort to the
exerdse of inherent powers.
r224G-H1
2. The term "interlocutory order" is a term of well-known legal significance
\.Vhich has been used in various statutes.
Decided cases have laid down that
interlocutory orders to be appealable must be those which decide the rights and
liabilities of the parties concerning a particular aspect.
The term "interlocutory
order" ins. 397(2) has been used in a restricted sense. and not in any broad and
artistic sense. It merely denotes orders of a purely interim or temporary nature
\vhich do not decide or touch the important rights or liabilities of the parties.
Any order which substantia1ly affects the right of the accused, or dec1jes certain
rights of the parties cannot be said to be an interlocutory order so as to bar a
revision to the High Court against that order, because that would be against
the very object which formed the basis for insertion of this provision in s. 397
of the c·ode. For instance, orders summoning witnesses, adjourning ewes, passtng
AMAR NATH v. HARYANA (Fazal Ali, J.)
223
orders for bail, calling for reports -and such other steps in aid. of the. pending
A
proceeding, may no doubt amount to interlocutory orders agan~st which
no
revision would lie under s. 397(2) of the Code. But orders which are matter.s
of moment .and v.·hich affect or adjudicate the rights of the accused Or a particular aspect of the trial cannot be said to be interlocuto~y orders so as to be
outside the purview of the revisional jurisdiction of the .High Court. [227D-Gl
Central Bc111k of India v. Gokal Chand A.I.R. 1967 S.C. 799, 800, A-Johan
Lal Magan Lal Thacker v. State of Gujarat, [1968] 2 S.C.R. 685, Baldevdas v.
Filn1istan Distributors (India) Prt. Ltd., A.I.R. 1970 S.C. 406, Standard Glass
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Beads Factory ilnd Anr. v. Shri Dhar & Ors., A.I.R. 1960 All. 692, Union of
India v. Klietra Mohan Banerjee, A.LR. 1960 Cal. 190, Gokal Chand v. Sanwal
Das & Others, A.LR. 1920 Lah. 326, Bei1an Aftab Kan1ani v. Shri Lal Chand
Khanna, A.LR-. 1969 Delhi 85 and Har Pars/iad }Vali and Anr. v. Naranjan
/\rath Matoo and Others, A.l.R. 1959 J & K 139 referred to.
In the instant case, the impugned order cannot be said to be an interlocutory
order which could not be revised by the High Court under s. 397(1) and (2)
of the Code. By. virtue of the order of the Judicial Magistrate, as affirmed by
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the Additional Sessions Judge, the appellants acquired a valuable right of not
being put on trial unless a proper order \\'as made against them. The complaint
made for the second time was dismissed by the Judicial Magistrate. on merits;
in revision the Sessions Judge ordered further enquiry and the Judicial ~fagistrate straightaway summoned the appellants, which meant that they were to be
put on trial. With the passing of the impugned order, proceedings started and
the question of the appellants being put on trial arose. Undoubtedly, this was
a valuable right vvhich the appellants possessed and which was denied to them
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by the impugned order.
It cannot, therefore, be said that the appellants \Vere
not prejudiced or that any right of theirs was not involved by that order. The
impugned order was, therefore, one of moment to the appellants involving
a
decision regarding their, rights. Compelling the appellants to face a trial without
proper application of mind by the ~fagistrate, cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the
appellants.
[229C-D]
CRIMINAL APPEI:LATE JURISDICTION : Criminal Appeal No. 124
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of 1977.
Appeal by Special Leave from the Judgment and Order dated
14-2-77 of the Punjab and Haryana High Court in Cr!. Misc. Petition
No. 6070 of 1976.
D. Mookerjee and D. N. Mukherjee, for the Appellants.
H. S. Marwah, for Respondent No. I
Anand Prakash and S. C. Patel, for Respondent No. 2
The Judgment of the Court. was delivered by
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FAzAL Au, J.-This appeal by special leave involves ·an important question as to the interpretation, scope, ambit and connotation
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of the word "int<Tlocutory order" as appearing in sub s. (2) Of s. 397
of the Code of Criminal Procedure 1973.
For the purpose ol
brevity, we shall refer to the Code of Criminal Procedure, 1898
as
"the 1898 Code", to the Code of Criminal Procedure, 1898 as amended in 1955 as :'the 1955 Amendment" and to the Code of Criminal
Procedure, 1973 as "the 1973 Code".
The appeal arises in the following circumstances.
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An incident took place in village Amin on April 23, 1976 in the
course of which three persons died and F.l.R. No. 139 dated April
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SUPREME COURT REPORTS
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23, 1976 was filed at police station Butana, District Karna! at about
5-30 P.M.
The F.1.R. mentioned a number of accused persons including the appellants as having participated m the occurrence which
resulted in the death of the deceased.
The police, after holding investigations, submitted a charge-sheet against the other accused persons except the appellants against whom the police opined that no
case at all was made out as no weapon was recovered nor was there
any clear evidence about the participation of the appellants.
The
police thus submitted its final report under s. 173 of the •19.73 Code
insofar as the appellants were concerned.
The report was
placed
before Mr. B. K. Gupta the Judicial Magistrate, Ist Class,
Karna!,
who after perusing the same set the appellants at liberty after having
accepted the report.
It appears that the complainant filed a revision
petition before the Additional Sessions Judge, Karna! against
the
order of the Judicial Magistrate, Ist Class, Kamal releasing the appellants, but the same was dismissed on July 3, 1976.
The informant filed a regular complaint before the Judicial Magistrate,
Jst
Class, on July 1, 1976 against all the 11 accused including the appellants. The. learned Magistrate, after having examined the complainant
and going through the record, dismissed the. complaint as he was
satisfied that no case was made out against the appellants. Thereafter
the complainant took up the matter in revision before the Sessions
Judge,
Karna!, who this time accepted the revision petition
and
remanded the case to the Judicial Magistrate for .further enquiry. On
No;1ember 15, 1976, the learned Judicial Magistrate, on receiving
the order of the Sessions Judge, issued summons to the appellants
straightaway.
The appellants then moved the High Court under s.
482 and s. 397 of the 1973 Code for quashing the order of the Judicial Magistrate mainly on the ground that the Magistrate had issued
the summons. in a mechanical manner without applying his judicial
mind to the facts of the case.
The High Court dismissed the petition in limine and refused to entertain it on the ground that as the
order of the Judicial Magistrate dated November 15, 1976 summoning
the appellants was an interlocutory order, a revision
to the
High.
Court was barred by virtue of sub s. (2) of s. 397 of the 1973 Code.
The learned Judge further held that as the revision. was barred, the
Court could not take up the case under s. 482 in order to quash the
very order of the Judici~l Magistrate under s. 397(1) of the
1973
Code.
Otherwise the very object of s. 397(2) would be defeated.
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
197 3 Code the inherent powers contained in s. 482 would
not ile
available to defeat the bar contained in
s.
397(2).
Section
482
of the 1973 Code contains the inherent powers of the Court
and
does not coni'er any new powers but preserves the powers which the
High Court already
possessed.
A harmonious construction of
ss.
397 and 482 would lead to the irresistible conclusion that where
a
particular order is expressly barred under s. 397(2) and cannot be
the subject of revision by the High Court, then to such a case the provisions of s. 482 would not apply.
It is well settled that the inherent
AMAR NATH v. HARYANA (Fazal Ali,!.)
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powers of the Court can ordinarily be exercised when there is
no
express provision on the subject-nutter.
Where there is an express
provision, barring a particular remedy, the Court cannot resort
to
the exercise of inherent powers.
So far as the second plank of the view of the learned Judge that.
the. order of the Judicial Magistrate in the instant case was an interlocutory order is cpncerncd, it is a matter V'hich merits serious consideration.
A history of the criminal legislation in India would manifestly reveal that so far as the Code of Criminal Procedure is concerned
both in the 1898 Code and 1955 Amendment the widest
possible
powers O'~ revision had been given to the High Court under ss. 435
and 439 of those Codes.
The High Court could examine the propriety of any order-whether final or interlocutory-passed by any
Subordinate Court in a criminal matter.
No limitation and restriction on the powers of the High Court were placed.
But this
Court as also the various High Courts in India, by a long course of
decisions, confined the exercise of revisional powers only to cases
where the impugned order suffered from any error of law or
any
legal infirmity causing injustice 0r prejudice to the accused or
was
manifestly foolish or perverse.
These. restrictions were placed by
the case law, merely as a rule of prudence rather than a rule of law
and in suitable cases the High Courts had the undoubted power to
interfere with the impugned order eYen on facts. Sections 435 and
439 being identical in the 1898 Code and 1955 Amendment insofar as
they are relevant .run, thus :
. "435 (1) The High Court or any Sessions Judge or Dis-
.trict Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf, may call 'for and
examine the record of any proceeding before any inferior
Criminal Court situate within the local limits of its or his
jurisdiction for the purpose of satisfying itself or himself as
to the correctness, legality or propriety df any finding, sen"-
tence or order recorded or passed, and as to the regularity
of any proceedings of such inferior Court .. .... ...... .. "
"439. (1) In the case of any proceeding the record of
which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge,
the High Court may, in its discretion, exercise any of
the
powers conferred on a
Court of appeal by
section 423,
. 426, 427 and 428 or on a Court by section 338, and may
enhance the. sentence; and, when the Judges composing the
Court of revision are equally divided in opinion, the case
shall be disposed of in manner provided by section 429.
(2) No order under this section shall be made to
the
prejudice of the accused unless he has had an opportunity
of being heard either personally or by pleader in his own
defence."
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In fact the only rider that was put under s. 439 was that where the
Court enhanced the sentence th~ accused had to be given an opportunity of being heard.
The concept of an interlocutory order qua the revisional jurisdiction of the High Court, therefore, was completely foreign to
the
earlier Code.
Subsequently it appears that there had b~en large
number of arrears and the High Courts were flooded with revisions
of all kinds against interim or interlocutory orders which led to enormous delay in the disposal of cases and exploitation of the
poor
accused by the affluent prosecutors.
Some times interlocutory orders
caused harrassment to the accused by unnecessarily protracting the
tria'fs.
It was in the background of these facts t)Jat the Law Commission dwelt on this aspect of the matter and in the 14th and 41st
Reports submitted by the Commission which formed the basis of
.the 1973 Code the said Commission suggested revolutionary changes
·to be made in the powers of the High Courts.
The recommendations
of the Commission were examined carefully by the
Government,
keeping in view; the following basic <;:onsiderations :
" (i) an accused person should get a fair trial in accor-.
dance with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to
the
individuals involved but also to society; and
(iii) the procedure should not be complicated and should,
to the utmost extent possible~- ensure fair deal
to
the poorer sections of the community."
This is dearly mentioned in the Statement of Objects and Reasons accompanying the 1973 Code.
Clause (d) of Paragraph 5
of the Statement of Objects and Reasons runs thus
".the powers of revision against interlocutory Ol'ders are
being tak·~n away, as it has been found td be one of
the
main contributing factors in the delay of disposal of criminal
cases : "
Similarly, replying to the debate in the Lok Sabha on sub-c'lause
(2) of Clause 397, Shri Ram Niwas Mirdha, the Minister concerned,
observed as follows :
·'It was stated before the Select Committee that a large
number of appeals against interlocutory orders are filed with
the result that th~ appeals got delayed considerably. Some
of the more notorious cases concern big business persons.
So, this new· provision was also wek.omed by most of t~e
witnesses as well as the Select Committee .. . ........ This
was a well-thought out measure so we do not want to delete
h."
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AMAR NATH v. HARYANA (Fazal Ali, :T.)
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Thus it would appear that s. 397(2) was incorporated in the 1973
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Code with the avowed purpose of cutting out delays and
ensuring
that the accused persons got a fair trial without much delay and the
procedure was not made complicated.
Thus the paramount object
in inserting this new provision of sub-s. (2) of s. 397 was to safeguard
the interest of the accused.
Let us now proceed to interpret the prowsions of s. 397 against the
bistorical background of these f;lcts.
Sub-section (2) of s.
397 of
the 1973 Code may be extracted thus :
"The powers of revision conferred by ~ub-section
(1)
shall not be exercised in relation to a!ly interlocutory order
passed in any appeal, inquiry, trial or other proceeding."
The main question which falls fclr determination in this appeal i's
:as to the what is the connotation of the term "interlocutory order" as
.appearing in sub.-s.
(2) of s. 397 which bars any revision of such 'an
order by the High Court.
The term "interlocutory order" is a term
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.of well-known Iegal significance and does not present any serious diffi-
.culty.
It has been used in various statutes including the Code
of
Ci,<;J Procedure, Letters Patent of the High Courts and other like
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statutes.
In Webster's New World Dictionary "interlocutory"
has
been defined ·as an order other than final decision.
Decided
cases
have laid down that in~erlocutory orders to be appealable must
be
those which decide the rights and liabilities of the parties concerning a
particular aspect.
It seems to us that the term "interlocutory order"
in s. 397 (2) of the 1973 Code has been used in a restricted
sense
:and not in any broad or artistic sense.
It merely denotes
orders
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of a purely interim or temporary nature which do not decide or touch
the important rights or the liabilities of the parties.
Any order which
substantially affects the right oe the accused, or decides certain rights
of the parties cannot be said to be an interlocutory order so as to bat
a revision to the High Court against that order, because that would be
against the very object which formed the basis for insertion of this
particular provision in s. 397 of the 1973 Code.
Thus, for instance,
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orders summoning witnesses, adjourning cases, passing orders
for
bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocntory orders against which
no revision would lie under s .. 397 (2) of the 1973 Code.
But orders
which are matters of moment and which affect or adjudicate the rights
of the accused or a particular' aspect of the trial cannot be said to be
interlocutory order so as to be outside the []mrview of· the revisional
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jurisdiction of the High Court.
In Central Bank of India v. Gokal Chand(') this Court while
describing the incidents of an interlocutory order, observed as follows
"In the context of s. 38 ( 1), the words "every order of
the Controller made under this Act", though very wide, do
not include interlocutory orders, which are merely procedural
(I) A.LR. 1967 S.C. 799, 800.
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and do. not affect the rights or liabilities of the parties.
In a
pending proceeding the Controller, may pass many interlocutory orders under ss. 36 and 37, such as orders regarding
the summoning of witnesses, discovery, production and inspection df documents, issue of a commission for examination
of witnesses, inspection of premises, fixing a date of hearing
and the admissibility of a document or the relevancy of
a
question.
All these interlocutory 'orders are steps
taken
towards the final adjudication and for assisting the parties in
the prosecution of their case in the pending proceeding; they
regulate the procedure only and d.o not affect any right or
liability of the parties."
The aforesaid decision clearly illustrates the nature and incidents
of ·an interlocutory order and the incidents given by this Court constitute sufficient guidelines to interpret the connotation of the
word
"interlocutory order" as appearing in sub-s. (2) of s. 397 of the 1973
Code.
·
Similarly in a later case in Mohan Lal Magan Lal Thacker v. State
. of Gujarat(') this Court pointed out that the finality of an order could
not be judged by co-relating that order with the controversy in
the
complaint.
The fact that the controversy still remained alive
was
irrelevant.
In that case this Court held that even thoul!h it was
an interlocutory order, the order was a final order.
-
Similary in Baldevdas v. Filmistan Distributors (India) Pvt. Ltd.(')
while interpreting the import of the words "case decided'' appearing in
s. 115 of the Cocte·of Civil Procedure, this Court observed as follows
"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;"
Apart from this it would appear that under the various provisions
of the Letters Patent of the High Courts in India, an appeal lies to a
Division Bench from an order passed by a Single Judg<> and some
High Courts have held that even though the order may appear to be
an inter"Jocutory one where it does decide one of the aspect of
the
Tights of the parties it is, appealable.
For instaRce, an order of a
Single Judge granting a temporary injunction was held by a Full Bench
of Allahabad High Court in Standard Glass Beads Factory ·and Anr.
v. Shri Dhar & Ors.(") as not being an interlocutory order having decided some rights of the parties and was, therefore, appealable.
To
the sam" effect arc the decisions of the Calcutta High Court in Union
of India v. Khetra Mohan Banerjee('), of the Lahore High Court in
Gokal Chand v. Sanwal Das and others;(') of the Delhi High Court
(I) [19681 2 S.C.R. 685.
(2) A.l.R. [1970] S.C. 406.
(l) A.LR. [19601All.692.
(~)A.LR. [19601Cd.190.
{.;) A.LR. [1920] Lah. 326.
·-
AMAR NATH v. HARYANA (Fazal Ali, !.)
229
in Begum A/tab Zamani v. Shri Lal Chand Khanna(') and of the
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Jammu & Kashmir High Court in Har Parshad Wali and Anr. v. Naranjan Nath Matoo and others( 2).
·
Applying the aforesaid rests, let us now see whether the order
impugned in the instant case can be said to be an interlocutory order
as held by the High Court. In the first place, so far as the appellants are
concerned, the police had submitted its final report against them and
they were released by the Judicial Magistrate.
A revision against
that order to the Additional Sessions Judge preferred by the
complainant had failed.
Thus the appellants, by virtue of the order of
the Judicial Magistrate as affirmed by the Additional Sessions Judge
acquired a valuable right of not being put on trial unless a
proper
order was made against them.
· Then came the complaint by respondent No. 2 before the Judicial Magistrate which w~s also dismissed
on merits.
The Sessions Judge in revision, however, set aside the
order dismissing the complaint and ordered further inquiry.
The
Magistrate on receiving the order of the Sessions Judge summoned
the appellants straightaway which meant that the appellants were to be
put on trial.
So long as the Judicial Magistrate had not passed this
order, no proceedings were started against the appellants, nor were
any such proceedings pending against them.
It w.as only with the
passing of the impugned order that the proceedings started and the
question of the appellants being put up for trial arose for the first time.
This was undoubtedly a valuable right which the appellants possessed
and which was being denied to them by the impugned order. It
cannot, therefore, be said that the appellants were not at all prejudiced,
or that any right of theirs was not involved by the impugned order.
It is diftkult to hold that the impugned order summoning the appellants
straightaway was merely an interlocutory order which could not be
revised by the High Court under sub-ss. (1) and (2) of s. 397 of
the 1973 Gode.
The order ·of the Judicial Magistrate ·summoning the
appellants in \he circumstances of the present case, particularly having
regard to what had preceded, was undoubtedly a matter of moment,
and a valuable right of the appellants had been taken away by the
Magistrate's passing an order prima facie in a mechanical fashion
without applying his mind. We are, therefore, satisfied that the order
impugned was one which was a matter of moment and which did
involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial
at all, but by compelling the appellants to face a trial without proper
application of mind cannot be held to be an interlocutory matter but
one which decided a .serious question as to the rights of the appellants
to be put on trial.
•
For these reasons, the order of the Judicial Magistrate, !st Class,
Karna! dated November 15, 1976 cannot be said to be an interlocutory
order and does not fall within the mi'schief of sub·s. (2) ot s. 397 of
the 1973 Code and is not covered by the same. That being the posi-
(1) A.LR. 1969 Delhi 85.
(2) A.l.R.1959 J. & K.139.
B
c
D
E
F
G
H
230
SUPREME COURT REPORTS
[1978] 1 S.C.R.
A
tion, a revision against this order was fully competent under s. 397 (1)
or under s. 482 of the same Code, because the scope of both these
sections in a matter of this kind is more or· Jess the same.
As we propose to remand this case to the High Court to decide
the revision on merits, we refrain from making any observation regarding the merits of the case.
The appeal is, therefore, allowed,
the
B
order of the High Court dated February 14, 1977 refusing to entertain
the revision petition of the appellants 'is ·set aside. The High Court is
directed to admit the revision petition filed by the appellants and to
decide it on merits in accordance with the law.
P.B.R.
Appeal allowed.