# MAD HU LIMA YE v. THE STATE OF MAHARASHTRA

- **Citation:** [1978] 1 S.C.R. 749
- **Court:** Supreme Court of India
- **Decided:** 1977-10-31
- **Case number:** Criminal Appeal No. 81 of 1977
- **Bench:** P. K. Goswami, N. L. Untwalia, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mad-hu-lima-ye-v-the-state-of-maharashtra-7316
- **Pages:** 12

## Headnote

Code of Cri111i11al Procedure, (Act II 1974), 1973 Ss. 397 (2) & 482-Scope
of-Whether the bar ins. 397(2) refers to revisional powers of the Iiiglt Courr
in all cases or only refers to revisional pOl'V'ers against interlecutory orders.
The appellant \\'as prosecuted for having made statements dafamatory to the
then Law Minister of the Government of !\'faharashtra. The Government decided to prosecute the appellant for an offence under Section 500 of Indian
Penal Code on the ground that the Law Minister was defamed in respect of
his conduct in· the discharge of his public functions.
Sanction was purported
to have been accorded under section 199( 4) (a). Thereafter, the public prosecutor filed a complaint in the court of the Sessions Judge.
Process was
issued against
the
appeJlant
upon
the
said
complaint. The
appellant
filed an application to dismiss the con1plaint on the ground that the court had
no jurisdiction to entertain the complaint. The appellant contended that the
allegations were made against Shri Antulay in relation to what he had done in
his personal capacity and not in his capacity as a l\.1inister.
The appellant
challenged the jurisdiction of the court on some other grounds, also challenging
the validity of the sanction.
The Sessions Judge rejected the contentions of the
appellant and framed a charge against the appellant under section 500 of the
Penal CoJe. The appellant, thereuoon, filed a revision· application in the High
Court. The High Court without going into the merits held that the revision
<ipplication was not maintainable in view of provisions of section 397(2).
Allowing the appeal by special leave,
HELD : 1. On a plain reading of section 482 it would follow that nothing
in the code which would include section 397(2) shall be
deemed to limit or
affect the inherent powers of the High Court.
However, it cannot be said that
the said bar is 11ot to operate in the exercise of the inherent power at all because it would be setting at naught one of the lin1itation imposed u11on
the
exercise of revisional powers.
A happy and harmonious solution would be to
say that the bar provided in section 397(2) opera•tes only in cxerci~e of the
revisional power of the High Court meaning thereby that the l-Tigh Court \Vlll
have no power of revision in relation to any interlocutory order.
The
inherent power would come into play there being no other provision in the code for
the redress of the grievance of the aggrieved party.
In
;:ase the
impugnet1
order brings about a situation which is an abuse of the process of the court or
for the purpose of securing the ends of justice interference bv the High Cotirt
is absolutely neces~ary, then nothing contained in Sf1ction 397 (2) can limit or
affect the exercise of the inherent power by the High Court. Such c.ases wou'd
be few· and far betv1een.
The High Court must exercise the inherent po\vcr
very sparingly. [753 H; H4 A-DJ
A111ar Natl1 and Ors. v. State of Haryt111t1 & Anr. Crl. A. No. 124 of 1977
tlecit!ed on 29th July, 1977; niodified & reiterated.
R. P. Kapuf v. The State of Punjab, [1960} 3 S.C.R. 388, referred to.
2. Even if it is assumed that an order of the Court taking cognisance or hsuing process is an interlocutory order, the bar created by section 397 (2) will not
pr~v~nt the Hi~ Court
from exer~isin~ its inherent po~er for stopping the
criminal nroceed1ng as early as possible instead of harassmg the accused u!ito
the end. (754 El
3. Ordinarily and generally the expression "Interlocutory Order" has been
understocxl and taken to mean as a converse of the term fina-1 order. 1735 J-11
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750
SUPREME COURT REPORTS
[ 1978] I S.C.R.
S. Kuppusll'a111i l~ao v. The King, [1947] Federal Court Report<>. 180 and
ScJ/e111an v. Warner, (1881) 1 C.B. 734 refe1Ted to.
The strict test for interpreting the words 'Interlocutory Order' cannot be applied while interpreting it as appearing in section 397(2). The interpretation
that what is not a final order must be

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749
MAD HU LIMA YE
v.
THE STATE OF MAHARASHTRA
October 31, 1977
[P. K. GOSWAMI, N. L. UNTWALIA AND D. A. DESAI, JJ.]
Code of Cri111i11al Procedure, (Act II 1974), 1973 Ss. 397 (2) & 482-Scope
of-Whether the bar ins. 397(2) refers to revisional powers of the Iiiglt Courr
in all cases or only refers to revisional pOl'V'ers against interlecutory orders.
The appellant \\'as prosecuted for having made statements dafamatory to the
then Law Minister of the Government of !\'faharashtra. The Government decided to prosecute the appellant for an offence under Section 500 of Indian
Penal Code on the ground that the Law Minister was defamed in respect of
his conduct in· the discharge of his public functions.
Sanction was purported
to have been accorded under section 199( 4) (a). Thereafter, the public prosecutor filed a complaint in the court of the Sessions Judge.
Process was
issued against
the
appeJlant
upon
the
said
complaint. The
appellant
filed an application to dismiss the con1plaint on the ground that the court had
no jurisdiction to entertain the complaint. The appellant contended that the
allegations were made against Shri Antulay in relation to what he had done in
his personal capacity and not in his capacity as a l\.1inister.
The appellant
challenged the jurisdiction of the court on some other grounds, also challenging
the validity of the sanction.
The Sessions Judge rejected the contentions of the
appellant and framed a charge against the appellant under section 500 of the
Penal CoJe. The appellant, thereuoon, filed a revision· application in the High
Court. The High Court without going into the merits held that the revision
<ipplication was not maintainable in view of provisions of section 397(2).
Allowing the appeal by special leave,
HELD : 1. On a plain reading of section 482 it would follow that nothing
in the code which would include section 397(2) shall be
deemed to limit or
affect the inherent powers of the High Court.
However, it cannot be said that
the said bar is 11ot to operate in the exercise of the inherent power at all because it would be setting at naught one of the lin1itation imposed u11on
the
exercise of revisional powers.
A happy and harmonious solution would be to
say that the bar provided in section 397(2) opera•tes only in cxerci~e of the
revisional power of the High Court meaning thereby that the l-Tigh Court \Vlll
have no power of revision in relation to any interlocutory order.
The
inherent power would come into play there being no other provision in the code for
the redress of the grievance of the aggrieved party.
In
;:ase the
impugnet1
order brings about a situation which is an abuse of the process of the court or
for the purpose of securing the ends of justice interference bv the High Cotirt
is absolutely neces~ary, then nothing contained in Sf1ction 397 (2) can limit or
affect the exercise of the inherent power by the High Court. Such c.ases wou'd
be few· and far betv1een.
The High Court must exercise the inherent po\vcr
very sparingly. [753 H; H4 A-DJ
A111ar Natl1 and Ors. v. State of Haryt111t1 & Anr. Crl. A. No. 124 of 1977
tlecit!ed on 29th July, 1977; niodified & reiterated.
R. P. Kapuf v. The State of Punjab, [1960} 3 S.C.R. 388, referred to.
2. Even if it is assumed that an order of the Court taking cognisance or hsuing process is an interlocutory order, the bar created by section 397 (2) will not
pr~v~nt the Hi~ Court
from exer~isin~ its inherent po~er for stopping the
criminal nroceed1ng as early as possible instead of harassmg the accused u!ito
the end. (754 El
3. Ordinarily and generally the expression "Interlocutory Order" has been
understocxl and taken to mean as a converse of the term fina-1 order. 1735 J-11
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750
SUPREME COURT REPORTS
[ 1978] I S.C.R.
S. Kuppusll'a111i l~ao v. The King, [1947] Federal Court Report<>. 180 and
ScJ/e111an v. Warner, (1881) 1 C.B. 734 refe1Ted to.
The strict test for interpreting the words 'Interlocutory Order' cannot be applied while interpreting it as appearing in section 397(2). The interpretation
that what is not a final order must be an interlocutory order is neither warranted
nor justified.
If it were so, it would render almost nugatory the revisional power
of the Sessions Court or High Court conferred by section 397(1), Although
the words occurring in a particular statute are plain and unambiguous they
have to be interpreted in a manner \Vhich would fit in the context ot the other
provisions of the Statute and bring about the real intention of the legislature.
There may be an order passed during the course of a proceeding which may be
not final but yet it may not be interlocutory order pure or sin1ple.
Some kinds
of orders may fall in behveen the two.
The bar of section 397(2) is not meant
to be attracted to such kind of intermediate orders.
They may not be final
orders for the purposes of Article 134 of the Constitution yet it would not be
correct to characterise them as merely interlocutory \Vithin the meaning of section 397(2). (756 F-H, 757 A-F, 759 E]
Abdul Rah1nan v. D. K. Cassi111 and Sons. (1933) 60 Indian Appeals, 76.
Baldevdas v. Filniistan Distributors India (P) Ltd., A.LR. 1970 S.C, 406
and
Paranieshwari Del·i v. State and Anr., rt9771 2 S.C.R. 160 and Prakash Chand
Agarwal & Ors. v. Mis Hindustan Steel Ltd.,
[197TJ 2
S.C.R.
405 referred
to.
4. If a complaint is disn1isscd under section 203 or 204(4) or the court
holds the proceedings to be void or discharge the accused, a revision to the
High Court at the instance of the complainant or the prosecutor would be competent. It, therefore, does not stand to reason why an accused '\Vill have no
remedy to move the High Court in revision or invoke its inherent power for the
quashing of .crin1inal proceedings initiated on a complaint or otherwise.
[760 C~·EI
The court allowed the appeal, set aside the High Court Judgment ~nd ren,itted the case back to the High Court to dispose of on n1crits. l760 Fl
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 81 of
1977 ..
Appeal by Special Leave from the Judgment and Order
dated
10-11-75 of the Bombay High Court in Criminal Revision Application
No. 180 of 1975.
K. Rajendra Chudhary and Mrs. Veena Devi Khanna for ti1e appellant.
M. N. Nwdke and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
UNTWALIA J.-This is an appeal by special leave from the order of
the Bombay High Court rejecting the application in revision filed by
the appellant under section 397 (1) of the Code of Criminal Procedure, 1973 hereinafter to be referred to as the 1973 Code or the new
Code, on the ground that it was not maintainable in view of the pro·
vision contained in sub-section (,2) of section 397.
The High Court hn~
not gene into its merits.
. It is not necessary to state the fact>; of the case in any detail for
the disposal of this appeal. A bare skeleton of them will suffice. Tn a
press conference held at New Delhi on the 27th September, 1974 the
appellant i's said to have made certain statements and handed over a
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MADIJL LIMAYE v. MAHARASHTRA ( Untwaliil, J.)
75 I
"press hand-out'° containing allegedly some defamatory statements concerning Shri A. R. Antulay, the then Law Minister of the Government
of Maharashtra.
The said statements were published in various newspapers.
The State Government decided to prosecute the appellant for
an offence under section 500 of the Indian Penal Code as it was of the
view that the Law Minister . was deiamed in respect of his conduct in
the discharge of his public functions.
Sanction in accordance with
section 199(4) (a) of the 1973 Code was purported to have been accorded by the State Government.
Thereupon the Public Prosecutor
filed a complaint in the Court of the Sessions Judge, Greater Bombay.
Cognizance of the offence alleged to have been committed by the appellant was taken by the Court of Sessions without the case being committed lo it as permissible under sub-·section (2) of section 199.
Process was issued against the appellant upon the said complaint.
The Chief Secretary to the Government of Maharashtra was examined on the 17th February, 1975 as a witness in the Sessions Court
to prove the sanction order of the State Government.
Thereafter on
the 24th February, 1975 Shri Madhu Limaye, the appellant, filed an
application .to dismiss the complaint on the ground that the Court had .
no jurisdiction to entertain the complaint.
The stand taken on behalf
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of the appellant was that allegations were made against Shri Antulay
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in relation to what he had done in his personal capacity and not in his
capacity of discharging his functions as a Minister.
Chiefly on that
ground and on some others, the jurisdiction of the Court to proceed
with the trial was challenged by tlw appellant.
The appellant raised three contentions in the Sessions· Court and ·
later in the High Court assailing the validity and the legality of the
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lrial in question.
They are :-
( I ) That even assuming the allegations made
against Shri
Antulay were defamatory, they were not in respect of his
conduct in
the discharge
of his public functions
and hence the aggrieved person
could
file a complaint in the Court of a competent Magistrate who after
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taking cognizance could try the case or commit it to the
Court of Sessions if so warranted in law.
The Court of
Sessions could not take cognizance without the committal
of the case to it.
( 2) The sanction given was bad in as much as it was not given
by the State Government but was
given by the Chief
Secretary.
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( 3) The Chief Secretary had not applied his mind to the entire
conspectus of the facts and had given the sanction in a
mechanical manner.
The sanction was bad on that account too.
The Sessions Judge rejected all these contentions and framed a
charge against the appellant under section 500 of the Penal Code. The
appellant. thereupon, challenged the order of the Sessions Judge in the
revision filed by him in the High Court.
As already 'stated, without
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SUPREME COURT REPORTS
[ 1978] I S.C.R.
entering into the merits of any of the contentions raised by.the appellant, it upheld the preliminary objection as to the maintainability of the
revision application.
Hence this appeal.
The point which falls for determination in this appeal is squarely
covered by a decision of this Court to which one of us (Untwalia J.)
was a party in Amar Nath and Others v. State of Haryana & Anr (').
But on a careful consideration of the matter and on hearing learned
counsel for the parties in this appea•l we thought it advisablc to enunciate and reiterate the view taken by two learned judges of this Court in
Amar Nath's case but in a somewhat modified and modulated form. Jn
A mar Nath's case, as in this, the order of the Trial Court issuing process
against the accused was challenged and the High Court was asked to
qua'sh the criminal proceeding either in exercise of its inherent power
under section 482 of the 1973 Code corresponding to section 561A of
the Code of Criminal Procedure, 1898-hereinafter called the 1898
Code or the old Code, or under section 397 (I) of the new Code corresponding to section 435 of the old Code.
Two points were decided
in Amar Nath's case in the following terms :-
(I) "While we fully agree with the view taken by ·the learned
Judge that where a revision to the High Court against the
order of the Subordinate Judge is expressly barred under
sub-s. (2) of s. 397 of the 1973 Code the inherent powers
contained in s. 482 would not be available to defeat the
bar contained in s. 397(2)."
(2) The impugned order of the Magistrate. however, was not
an interlocutory order.
For the reasons stated hereinafter we think that the statement of
the law apropos point no. I is not quite accurate and needs some
modulation.
But we are going to reaffirm the decision of the Court
on the second point.
Under section 435 of the l898 Code the High Court had the power
to "call for and examine the record of any proceeding before any inferior Criminal Court 'situate within the local limits of its ... jurisdiction for the purpose of satisfying itself ... as to the correctness, legality or propriety of any finding, sentence or order recorded or passed.
and as to the regularity of any proceedings of such inferior Court", and
then to pass the necessary orders in accordance with the law engraftcd
in any of the section's following section 435.
Apart from the rcvisional
power, the High Court possessed and possesses the inherent powers to
be exercised ex debito justitiae to do the re<l\ and the ~ubstantia\ justice
for the administration of which alone Courts exist.
In express language this power was recognized and saved in section 561 A of the old
Code.
Under section 397 (I) of the 1973 Code, revisional power has
been conferred on the High Court in terms which arc identical to those
found in section 435 of the 1898 Code. Similar is the po'sition apropos
the inherent powers of the High Court
We may read the language
, {I) Criminal Appeal No. 124 of 1977 decided on the 29th July. 1977.
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MADHU L!MAYE v. MAHARASHTRA (U11twalia, !.)
753
of section 482 (corresponding to ·section 561A of the old Code) of the
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1973 Code. It says :-
"Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such orders as
may be necessary to give effect to any order under this Code,
or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
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At the outset the following principles may be noticed in relation to the
exercise of the inherent power of the High Court which have been
followed ordinarily and generally, almost invariably, barring a few exceptions :-
(I) That the power is not to be resorted to if there is a specic
fie provision in the Code for the redress of the grievance
of the aggrieved party ;
( 2) That it should be exercised very sparingly to prevent abuse
of process of any Court or otherwise to secure the ends of
justice;
( 3) That it should not be exercised as against the expre55 bar
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of law engrafted in any other provision of the Code.
In most of the cases decided during several decades the inherent
power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or the other.
Sometimes the revisional jurisdiction of the High Court has also been resorted to for the
same kind of relief by cha1lenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no
jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be
framed as no offence was made out on the allegations made or the
evidence adduced in Court.
In the background aforesaid we proceed
to examine as to what is the correct position of law after the introduction of a provision like sub section (2) of section 397 in the 1973
Code.
As pointed out in Amar Nath's case (supra) the purpose of putting
a bar on the power of revision in relation to any interlocutory order
passed in an appeal, inquiry, trial or other proceeding is to bring about
expeditious disposal of the cases finally.
More often than not, the
revisional power of the High Court was resorted to in relation to 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 otl)er, the power has been conferred in almost the same terms as it
was in the 1898 Code.
On a plain reading of section 482, however,
it would follow that nothing in the Code, which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the
inherent powers of the High Court".
But, if we were to say that the
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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 revi"sional 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 prnvision in the Code for the redress or
the grievan'ce of the aggrieved party. But then, if the order assail<Xi
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
tl1e inherent power by the High Court.
But such cases would be few
and far between.
The High Court must exercise the inherent power
very sparingly.
One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being
without jurisdiction.
Take for example a case where a prosecution is
launched under the Prevention of Corruption Act without a sanction.
then the trial of the accused will be without jurisdiction and even after
his acquittal a second trial after proper sanction will not be barred on
the doctrine of Autrefois Acquit.
Even assuming, although we shall
presently show that it is not so, that in such a case an order of the
Court taking cognizance or issuing processes is an interlocutory order.
does it stand to reason to say that inherent power of the High Court
cannot be exercised for stopping the criminal proceeding as early as
possible, instead of harassing the accused upto the end ? The answer
is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice.
The label of
the petition filed by an aggrieved party is immaterial.
The Hi~h Conrt
can examine the matter in an anoropriate ca'se under its
inherent
powers.
The 'present case undoubtedly falls for exercise of the power
of the HiQh Court in accordance with section 482 of the 1973 Code.
even assumin~. althouQh not acceoting, that invoking the
revisional
power of the High Court is impermissible.
In R. P. Kapur v. The State of Punjab(') Gajendragadkar J., as he
then was, delivering the judgment of this Court pointed out, if we may
say so with respect, very succinctly the scope ot the inherent power of
the High Court for the purpose of quashing a criminal proceeding.
Says the learned Judge at pages 392-93 :--
"Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code,
and the High Court would be reluctant to interfere with the
said proceedings at an interlocutory stage.
It is not possi-
(1) [1960] 3 S.C.R.388.
MADHU LIMAYE v. MAHARASHTRA (Untwalia, J.)
755
ble, desirable or expedient to lay down any inflexible rule
which would govern the exercise of this inherent jurisdiction.
However, we may indicate some categories of cases where
the inherent jurisdiction can and should be exercised for
quashing the proceedings.
There may be cases where it may
be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an
accused person may amount to the abuse of the process of
the court or that the quashing of the impugned proceedings
would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been
committed by au accused person and it manifestly appears
that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified
in quashing the proceeding on that ground. Absence of the
requisite sanction may, for instance, furnish cases under this
category.
Case·s may also arise where the allegations in the
First Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases no question
of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.
In such
cases it would be legitimate for the High Court to hold that
it would be manifestly unju'st to allow the process of the criminal court to be issued against the accused person.
A third
category of cases in which the inherent jurisdiction of the
High Court can be successfully invoked may also arise.
In
-cases falling under this category the allegations made against
the accused person do constitute an offence alleged but there
is either no legal evidence adduced in support of the case
or evidence adduced clearly or manifestly fails to prove the
charge. In dealing with this class of cases it is important to
bear in mind the di"stinction between a case where there is
no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and
cases where there is legal evidence which on its appreciation
may not support the accusation in question.
In exercising
its jurisdiction under s. 561-A the High Court would not
embark upon an enquiry as to whether the evidence in question is reliable or not.
That is the function of the trial
magistrate, and ordinarily it would not be open to any party
to invoke the High Court's inherent iurisdiction and contend
that on a reasonable appreciation of the evidence the accusation made against the accus.ed would not be sustained."
We think the law as stated above is not affected by section 397(2)
of the new Code. It still holds good in accordance with 'section 482.
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Ordinarily and generally the expression 'interlocutory order' has
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heen understood and taken to mean as a converse of the term 'final
order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742. however. it has been stated in para 1606 :-
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" ..... a judgment or order may be final for one purpose
and interlocutory for another, or final as to part and interlocutory as to part.
The meaning of two words must therefore be considered separately in relation to the particular
purpose for which it is required."
Jn para 1607 it is said :
"In general a judgment or order which determines the principal matter in question is termed "final"."
In para 1608 at pages 7 44 and 7 45 we find the words
"An order which does not deal with the final rights of the
parties, but either (1) is made before judgment, and gives
no final decision on the matters in dispute, but is merely on
a matter of procedure, or (2) is made after judgment, and
merely directs how the declarations of right already given in
the final judgment are to be worked out, is termed "interlocutory".
An interlocutory order, though not conclusive
of the main dispute, may be conclusive as to the subordinate
matter with which it deals."
J>
In S. Kuppuswami Rao v. Tile King(1) Kania C. J., delivering the
judgment of the Court has referred to some English decisions at pages
185 and 186.
Lord Esher M. R. said in Sa/aman v. Warner(") "If
their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these
rules it is final.
On the other hand, if their decision, if given in one
way, will finally dispose of the matter in dispute, but, if given in the
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other, will allow the action to go on, then I think it is not final, but
interlocutory." ·To the same effect are the observations quoted from
the judgments of Fry L. J. and Lopes L. J. Applying the said test,
almost on facts similar to the ones in the instant case, it was held that
the order in revision passed by the High Court (at that time there was
no bar like section 397 (2) was not a "final order" within the meaning
of section 205 (1) of the Government of India Act, 1935. It is to
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be noticed that the test laid down therein was that if the objection of
the accused succeeded, the proceeding could have ended but not vice
versa.
The order can be said to be a final order only if, in either
event, the action will be determined.
In our opinion if this strict test
were to be applied in interpreting the words
'interlocutory
order"
occurring in section 397 (2), then the order taking cognizance of an
offence by a Court, whether it is so done illegally or without jurisdicG
tion, will not be a final order and hence will be an interlocutory one.
Even so, as we have said above, the inherent power of the High Court
can be invoked for quashing such a criminal proceeding.
But in our
judgment such an interpretation and the universal application of the
principle that what is not a final order must be an interlocutory order
is neither warranted nor justified If it were so it will render almost
nugatory the revisional power of the Sessions Court or the High Court
H
conferred on it by section 397 (I). On such a 'strict interpretation ..
(1) (1947] Federal Court Reports, 180.
(2) [1891J I Q.B. 734.
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MADHU LIMAYE v. MAHARASHTRA (Untwalia, J.)
757
only those orders would be revisable which are orders passed on the
A
final determination of the action but are not appealable under Chapter
XXIX of the Code.' This does not seem to be the intention of the
Legislature when it retained the revisional power of the High Court in
terms identical to the one in the 1898 Code. In what cases then the
High Court will examine the legality or the propriety of an order or
the legality of any proceeding of an inferior Criminal court ? Is it circumscribed to examine only such proceeding which is brought for
its
examination after the final determination and wherein no appeal lies ?
Such cases will be very few and far between.
It has been pointed out
repeatedly, vide, for
example, The River Wear
Commis~ioners v.
William Adamson(') and R. M. D. Chamarbaugwal/a v. The Union
8
of India(") that although the word occurring in a particular statute
are plain and unambiguous, they have to be interpreted in a manner
which would fit in the context of the other provisions of the statute and
C
bring about the real intention of the legislature.
On the one hand, the
legislature kept intact the revlsional power of the High Court and, on
the other, it put a bar on the exercise of that power in relation to any
interlocutory order.
In such a situation it appears to us that the real
intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order".
I>
There may be an order passed during the course of a proceeding which
may not be final in the sense noticed in Kuppuswami's case (sup;a).
but, yet it may not be an interlocutory order-pure or simple.
Some
kinds of order may fall in between the two.
By a rule of harmonious
construction, we think that the bar in sub-section (2) of seetion 397
is not meant to be attracted to such kinds of intermediate orders. They
may not be final orders for the purposes ·of Article 134 of the Constitution, yet it would ncit be correet to characterise them as merely interlocutory orders within the meaning of section 397(2). It is neither
advisable, nor possible, to make a catalogue of orders to demonstrate
which kinds of orders would be merely, purely or simply interlocutory
and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two.
The first two kinds are well-known and can be culled out from many
decided cases.
We may, however, indicate that the type of order with
which we are concerned in th!s case, even though it may not be final
in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397.
In our opinion it must be taken to be an
order of the type falling in the middle course.
F
In passing, for the sake of explaining ourselves. we may refer to
what has been said by Kania C. J. in Kuppuswami's case at page 187 G
by quoting a few words from Sir George Lowndes in the case of Abdul
Rahman v. D. K. Cassim and Sons('). The learned law Lord said
with reference to the order under consideration in that case : "The
effect of the order from which it is here sought to appeal was not to
dispose finally of the rights of the parties. It no doubt decided an
important, and even a vital, issue in the case, but it left the suit alive .
..,
and provided for its trial in the ordinary way. Many a time a question H
(I) [1876·77] 2 A.C. 743.
(2) [1957] S.C.R. 930.
(3) [1933] 60 Indian Appeals, 76.
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758
SUPRE~1E COURT REPORTS
[1978] I s.<.R.
arose in India as to what is the exact meaning of the phrase ··case
decided" occurring in section 115 of the Code of Civil Procedure. Some
High Courts had taken the view that it meant the final order passed
on final determination of the action.
Many others had,
however,
opined that even interlocutory orders were covered by the said term.
This Court struck a mean and it did not approve of either of the two
extreme lines.
In Baldevdas v. Filmistan Distributors (India) l'vt.
Ltd.(') it has been pointed out :-
·'A case may be said to be decided, if the Court adjudicates
for the purposes of the suit some right or obligation of the
parties in controversy : "
We may give a clear example of an order in a civil case which may
not be a final order within the meaning of Article 133 (1) of the Constitution, yet it will not be purely or simply of an interlocutory character.
Suppose for example, a defendant raises the plea of jurisdiction of a
particular Court to try the suit or the bar of limitation and succeeds.
then the action is determined finally in that Court.
But if the point
is decided against him the suit proceeds.
Of course, in a given case
the point raised may be such that it is interwoven and interconnected
with the other issues in the ca·se, and that it may not be possible to
decide it under Order 14 Rule 2 of the Code of Civil Procedure as a
preliminary point of law.
But, if it is a pure point of law and is decided one way or the other, then the order deciding such a point may
not be interlocutory, albeit-may not be final either.
Surely, it will
be a case decided, as pointed out by this Court in some decisions, within the meaning of section 115 of the Code of Civil Procedure.
We
think it would be just and proper to apply the same kind to test for
finding out the real meaning of the expression 'interlocutory order
occurring in section 397(2).
In Amar Nath's case, reference has been made to the decision ol
this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat(' I
After an enquiry under section 476 of the 1898 Code an order was
made directing the filing of a complaint against the appellant.
It was
affirmed by the High Court.
The matter came to this Court on grant
of a certificate under Article 134(1)(c).
A question arose whether
the order was a "final order" within the meaning of the said constitutional provision.
Shelat J., delivering the judgment on behalf of himself
and two other learned Judges, said that it was a final order.
The dissenting judgment was given by Bachawat J ., on behalf of himself and
one other learned Judge.
In the majority decision four tests were
culled out from some English decisions.
They are found enumerated
at page 688.
One of the tests is "If the order in question is reversed
would the action have to go on?" Applying that test to the facts of
the instant case it would be noticed that if the pica 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.
hov.ever, he loses on the merits of the preliminary point the proceeding
will go on.
Applying the test of Kuppuswami's case such an order will
·----·--- - .
(l} A. T. R. 1970 S.C. 406.
(2) [t968] 2 S.C.R. 685.
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MADHU LIMAYE v. MAHARASHTRA (Untwalia, J.)
759
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not be a final order.
But applying the fourth test noted at page 688
A
in Mohan Lal's case it would be a final order. The real point of dis-
•
tinction, however, is to be found at page 693 in the
judgment of
Shela!, J.
The passage runs thus :
"As observed in Ramesh v. Patni-[1966] 3 S.C.R. 198
the finality of that order was not to be judged by correlating
that order with the controversy in the complaint, viz., whether
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the appellant had committed the offence charged against him
•
therein.
The fact that that controversy still remained alive
is irrelevant.''
.,.
The majority view is based upon the distinction pointed out in the above
passage and concluding that it is a final order within the meaning of
Article
134(1) (c). While Bachawat J..
said at page 695: c
.. It is
merely
a
preliminary
step
in
the
prosecution
and
therefore an interlocutory orders." Even though there may be a
scope for expressing different opinions apropos the nature of the order
which was under consideration in Mohan Lal's case, in our judgment,
undoubtedly, an order directing the filing of a complaint after enquiry
made under a provision of the 1973 Code, similar to section 476 of
the 1898 Code will not be an interlocutory order within the meaning
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of section 397(2).
The order will be clearly revisable by the High
Court.
We must, however, hasten to add that the majority decision
in Mohan
Lal's case treats such an order as an order finallv
concluding the enquiry started to find out whether a complaint should
he lodged or not, taking the prosecution launched on the 1lling of the
rnmplaint as a separate proceeding.
From that point of view the
matter nnder discussion may not be said to be squarely covered by the
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decision of thfa Court in Mohan Lal's case.
Yet for the reasons already
alluded
to,
we
feel
no
difficulty
in coming
to
the conclusion, after due
consideration, that an order rejecting the plea
of the accused on a point which, when accepted, will conclude the
particular proceeding, will surely be not an interlocutory order within
the meaning of section 397 (2).
We may also refer to the decision of this Court in Parmeshwari
l>evi v, State and A nr. (') 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
nf section 397(2). Referring to a pas·sage from the decision of this
Court in Mohan Lal's case- the passage which is to be found in Halsbury\ Laws of England. Volume 22, it has been said by Shinghal L
delivering the judgment of the Court, at page 164 :
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·'Jt may thus be conclusive with
reference to the stage at
which it is made, and it may also be conclusive as to a person
who is not a party to the enquiry or trial. against whom it is
directed."
. .\s already mentioned, the view expressed in Mohan Lal's case may be
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open to debate or difference.
One such example is to be found in the
(1) [197712 S.C.R. 160.
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SUPREME COURT REPORTS
[ 1978] 1 S.C.R.
decision of this Court in Prakash Chand Agarwal & Ors. v. Mis Hindustan Steel Ltd. ( 1) wherein it was held that an order of the High
Court setting aside an cx-parte decree in the suit and restoring the suit
to the file of the Trial Court is not a final order within the meaning of
Article 133. It is to be noticed that if the High .Court would have refused to set aside the ex-parte decree, the proceeding for setting it
aside would have finally ended and on some of the principles culled
out by the majority in Mohan Lal's case, such an order would have
been a final order.
We are, however, not under any necessity to enter
into this controversial arena.
In our opinion whether the type of the
order aforesaid would he a final order or not, surely it will not be an
interlocutory order within the meaning of sub-section (2) of section
397 of the 1973 Code.
Before we conclude we may point out an obviou·s, almost insurmountable, difficulty in the way of applying literally the test laid down
in Kuppuswami Rao's case and in holding that an order of the kind
under consideration being not a final order must necessarily be an interlocutory one.
If a complaint is dismissed under section 203 or
under section 204 ( 4), or the Court bolds the proceeding to be void or
discharges the accused, a revision to the High Court at the in.stance
of the complainant or the prosecutor would be competent, otherwise it
will make section 398 of the new Code otiose.
Does it stand to reason, then, that an accnsed will have no remedy to move the High
Court in revision or invoke its inherent power for the quashing of the
criminal proceeding initiated upon a complaint or otherwise and which
is fit to be quashed on the face of it ? The legislature left the power
to order further inquiry intact in ·section 398.
Is it not, then, in consonance with the sense of justice to leave intact the remedy of the
accused to move the High Court for setting aside the order adversely
made against him in similar circumstances and to quash the proceeding ?
The answer must be given in favour of the just and reasonable
view expressed by u·s above.
For the reasons stated above, we allow this appeal, set aside the
F
judgment and order of the High Court and remit the case back to it to
dispose of the appellant's petition on merits, in the manner it may
think fit and proper to do in accordance with the law and in the light
of this judgment.
P.H.P.
Appeal allowed.
(l) [197112 S.C.R. 504.
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