# MOHIT ALIAS SONU AND ANOTHER v. STATE OF U.P. AND ANOTHER

- **Citation:** [2013] 7 S.C.R. 86
- **Court:** Supreme Court of India
- **Decided:** 2013-07-01
- **Case number:** Criminal Appeal No. 814 of 2013
- **Bench:** P. Sathasivam, M.Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohit-alias-sonu-and-another-v-state-of-u-p-and-another-29260
- **Pages:** 31

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973:
C
s. 482 read with ss. 319 and 397(2) - Order of Court of
Session rejecting prayer of complainant u/s. 319 to summon
applicants, set aside by High Cowt - Held: Order passed by
trial court refusing to issue summons on the application filed
by complainant uls. 319 decides rights and liabilities of
D appellants in respect of their involvement in the case and, as
such, cannot be said to be an interlocutory order so as to bar
a revision to High Court uls. 397(2)
s. 482 - Exercise of power by High Court - Held: Inherent
power of court can be exercised when there is no remedy or
E express provision provided in the Code for redressal of the
grievance - In the instant case, complainant ought to have
challenged the order before High Court in revision u/s. 397
and not by invoking inherent jurisdiction of High Court u/s.
482.
F
s. 482 read with s. 401 (2) - Opportunity of hearing - Held:
A valuable right accrued to appellants by reason of the order
passed by Court of Session refusing to issue summons - In
the circumstances, principle of giving notice and opportunity
of hearing as contemplated uls 401(2) should be applied
G where such orders are challenged in High Court u/s. 482 -
Order of High Court set aside and matter remanded to it for
decision afresh after giving opportunity of hearing to
appellants - Notice.
H
86
MOHIT ALIAS SONU v. STATE OF U.P.
87
In the instant appeal challenging the order of the High A
Court in a petition u/s. 482 Cr.P.C. setting aside the order
of the Court of Session rejecting the application of the
complainant u/s. 319 to summon the two appellants, the
questions for consideration before the Court were: (i)
whether petition u/s. 482 Cr.P.C. before the High Court B
challenging the order of the Court of Session u/s. 319
Cr.P.C. was maintainable; and (ii) whether the High Court
before passing the impugned order ought to have given
noti~e and opportunity of hearing to the appellants.
. Allowing the appeal, the Court
HELD: 1.1 In exercise of revisional power u/ss. 397
and 401 Cr.P.C., the High Court can call for the records
c
of any criminal court and examine the correctness,
legality or propriety of any finding, sentence or order, D
recorded or passed, and as to the regularity of any
proceeding of such inferior court. However, sub-s (2) of
s. 397 puts a restriction on exercise of such power in
relation to an interlocutory order passed by the criminal
courts in any appeal, inquiry, trial or other proceeding. E
Further, sub-s (2) of s. 401 categorically provides that no
order shall be made by the High Court in exercise of
revisional jurisdiction affecting and prejudicing the right
of the accused or other person, unless he has been given
opportunity of hearing either personally or by pleader in F
his own defence. [Paras 11 and 12] [98-G-H; 99-A-B, C]
1.2 This Court is of the considered opinion that the
order passed by the trial court refusing to issue summons
on the application filed by the complainant u/s. 319 of
Cr.P.C. cannot be held to be an interlocutory order within G
the meaning of sub-s (2) of s. 397 of Cr.P.C. The
complainant's application u/s. 319 of Cr.P.C. was rejected
for the second time holding that there was no sufficient
evidence against the appellants to proceed against them
by issuing summons. The said order passed by the trial H
.
88
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
court decides the rights and liabilities of the appellants·
in respect of their involvement in the case and, as such,
cannot be said to be an interlocutory order so as to bar
a revision to the High Court against that order as
contemplated u/s. 397(2) of Cr.P.C. (Para 20] (110-F-H;
B
111-A-B]
Amar Nath & Ors. v. State of Haryana & Ors. 1978 (1)
SCR 222 = (1977) 4 sec 137 - relied on.
1.3 When the complainant's application u/s. 319 of
C Cr.P.C. was rejected for the second time, he moved the
High Court challenging the said order u/s. 482 of Cr.P.C.
on the ground that the Court of Session had not
cor

## Text

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A
B
[2013] 7 S.C.R. 86
MOHIT ALIAS SONU AND ANOTHER
v.
STATE OF U.P. AND ANOTHER
(Criminal Appeal No. 814 of 2013)
JULY 01, 2013.
[P. SATHASIVAM AND M.Y. EQBAL, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
C
s. 482 read with ss. 319 and 397(2) - Order of Court of
Session rejecting prayer of complainant u/s. 319 to summon
applicants, set aside by High Cowt - Held: Order passed by
trial court refusing to issue summons on the application filed
by complainant uls. 319 decides rights and liabilities of
D appellants in respect of their involvement in the case and, as
such, cannot be said to be an interlocutory order so as to bar
a revision to High Court uls. 397(2)
s. 482 - Exercise of power by High Court - Held: Inherent
power of court can be exercised when there is no remedy or
E express provision provided in the Code for redressal of the
grievance - In the instant case, complainant ought to have
challenged the order before High Court in revision u/s. 397
and not by invoking inherent jurisdiction of High Court u/s.
482.
F
s. 482 read with s. 401 (2) - Opportunity of hearing - Held:
A valuable right accrued to appellants by reason of the order
passed by Court of Session refusing to issue summons - In
the circumstances, principle of giving notice and opportunity
of hearing as contemplated uls 401(2) should be applied
G where such orders are challenged in High Court u/s. 482 -
Order of High Court set aside and matter remanded to it for
decision afresh after giving opportunity of hearing to
appellants - Notice.
H
86
MOHIT ALIAS SONU v. STATE OF U.P.
87
In the instant appeal challenging the order of the High A
Court in a petition u/s. 482 Cr.P.C. setting aside the order
of the Court of Session rejecting the application of the
complainant u/s. 319 to summon the two appellants, the
questions for consideration before the Court were: (i)
whether petition u/s. 482 Cr.P.C. before the High Court B
challenging the order of the Court of Session u/s. 319
Cr.P.C. was maintainable; and (ii) whether the High Court
before passing the impugned order ought to have given
noti~e and opportunity of hearing to the appellants.
. Allowing the appeal, the Court
HELD: 1.1 In exercise of revisional power u/ss. 397
and 401 Cr.P.C., the High Court can call for the records
c
of any criminal court and examine the correctness,
legality or propriety of any finding, sentence or order, D
recorded or passed, and as to the regularity of any
proceeding of such inferior court. However, sub-s (2) of
s. 397 puts a restriction on exercise of such power in
relation to an interlocutory order passed by the criminal
courts in any appeal, inquiry, trial or other proceeding. E
Further, sub-s (2) of s. 401 categorically provides that no
order shall be made by the High Court in exercise of
revisional jurisdiction affecting and prejudicing the right
of the accused or other person, unless he has been given
opportunity of hearing either personally or by pleader in F
his own defence. [Paras 11 and 12] [98-G-H; 99-A-B, C]
1.2 This Court is of the considered opinion that the
order passed by the trial court refusing to issue summons
on the application filed by the complainant u/s. 319 of
Cr.P.C. cannot be held to be an interlocutory order within G
the meaning of sub-s (2) of s. 397 of Cr.P.C. The
complainant's application u/s. 319 of Cr.P.C. was rejected
for the second time holding that there was no sufficient
evidence against the appellants to proceed against them
by issuing summons. The said order passed by the trial H
.
88
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
court decides the rights and liabilities of the appellants·
in respect of their involvement in the case and, as such,
cannot be said to be an interlocutory order so as to bar
a revision to the High Court against that order as
contemplated u/s. 397(2) of Cr.P.C. (Para 20] (110-F-H;
B
111-A-B]
Amar Nath & Ors. v. State of Haryana & Ors. 1978 (1)
SCR 222 = (1977) 4 sec 137 - relied on.
1.3 When the complainant's application u/s. 319 of
C Cr.P.C. was rejected for the second time, he moved the
High Court challenging the said order u/s. 482 of Cr.P.C.
on the ground that the Court of Session had not
correctly appreciated the facts of the case and the
evidence ~rought on record. So far as the inherent power
D of the High Court as contained in s. 482 of Cr.P.C. is
concerned, it is reiterated that when an order, not
interlocutory in nature, can be assailed in the High Court
in revisional jurisdiction, then there should be a bar in
invoking the inherent jurisdiction of the High Court.
E
Thus, inherent power of the court can be exercised when
there is no remedy or express provision provided in the
Code of Criminal Procedure for redressal of the
grievance. The complainant ought to have challenged the
order before the High Court in revision u/s. 397 of Cr.P.C.
F
and not by invoking inherent jurisdiction of the High Court
u/s. 482 of Cr.P.C. [Para 21-23] (111-C-D, E-F, G-H; 112A-B]
Madhu Limaye. v. State of Maharashtra 1978 (1) SCR
7 49 = (1977) 4 SCC 551; Municipal Corporation of Delhi v.
G Ram Kishan Rohtagi 1983 (1) SCR 884 = (1983) 1 SCC 1;
Raj Kapoor & Ors. v. State & Ors. 1980 (1) SCR 1081 =
(1980) 1 SCC 43; Padam Sen & Anr. v. State of Uttar
Pradesh 1961 SCR 884 =AIR 1961 SC 218; Manohar Lal
Chopra v. Rai Bahadur Rao Raja Seth Hirata/ 1962 Suppl.
H SCR 450 = 1962 SC 527 - referred to.
MOHIT ALIAS SONU v. STATE OF U.P.
89
2. A valuable right accrued to the appellants by
A
reason of the order passed by the Court of Session
refusing to issue summons on the ground that no prima
facie case was made out or:,i the basis of evidence
brought on record. When in the case of challenge to the
order of Court of Session, it is incumbent upon the
B
revisional court to give notice and opportunity of hearing
as contemplated under sub-s (2) of s. 401 Cr.P.C, there
is no reason why the same principle should not be
applied in a case where such orders are challenged in the
High Court uls. 482 of Cr.P.C. The High Court has c
committed a grave error in passing the impugned order
which is set aside and the matter is remanded to it for
consideration afresh after giving an opportunity of
hearing to the appellants. [Para 29 and 34) (113-F-H; 116-
~
D
Manharibhai Muljibhai Kakadia and Another v.
Shaileshbhai Mohanbhai Patel and Others 2012 (8) SCR
1015 = (2012) 10 SCC 517; P. Sundarrajan v.
R. Vidya
Sekar (2004) 13 SCC 472, Raghu Raj Singh Rousha v.
Shivam Sundaram Promotors (P) Ltd. 2008 (17) SCR 833 = E
(2009) 2 SCC 363; A.N. Santhanam v. K. Elangovan (2012)
12 SCC 321; Sayeed Bhagat and Others v. State of Andhra
Pradesh 1999 Crl.L.J. 4040; Satish Chandra Dey v. State of
Jharakhand & Anr. 2002 (2) AIR Jhar R 330 - referred to.
F
Sarabjit Singh and Another v.
State of Punjab and
Another 2009 (8) SCR 762 = (2009) 16 SCC 46; Hardeep
Singh v. State of Punjab and Others 2008 (15) SCR 735 =
(2009) 16 SCC 785 and Municipal Corporation of Delhi v.
Ram Kishan Rohtagi and Others 1983 (1) SCR 884 = (1983)
G
1 SCC 1; Lok Ram v. Nihal Singh and Another 2006 (3) SCR
· 1018 = (2006) 10 SCC 192; and Sarojben Ashwinkumar
Shah and Others. v. State of Gujarat and Another 2011 (9)
SCR 1138 = (2011) 13 .sec 316 Bangarayya v. State of
Kamataka and Others (2010) 15 SCC 114 - cited.
H
90
SUPREME COURT REPORTS
[2013) 7 S.C.R.
A
Case Law Reference:
2009 "(8) SCR 762
cited
para 5
2008 (15) SCR 735
cited
para 5
B
1983 ( 1) SCR 884
cited
para 5
2006 (3) SCR 1018
cited
para 6
2011 (9) SCR 1138
cited
para 6
(2010) 15 sec 114
cited
para 6
c
1978 (1) SCR 222
relied on
para 14
1978 (1) SCR 749
referred to
para 16
1983 (1) SCR 884
referred to
para 18
D
1980 (1) SCR 1081
referred to
para 19
1961 SCR 884
referred to
para 24
1962 Suppl. SCR 450
referred to
para 26
E
2012 (8) SCR 1015
referred to
para 30
(2004) 13 sec 472
referred to
para 30
2008 (17) SCR 8·33
referred to
para30
(2012) 12 sec 321
referred to
Para 30
F
1999 Crl.L.J. 4040
referred to
para 31
2002 (2) AIR Jhar R 330
referred to
para 32
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 814 of 2013.
From the Judgment and Order dated 28.10.2009 of the
High Court of Judicature at Allahabad in Criminal Misc.
Application No. 22823 of 2009.
H
A. Sharan, Aseem Chandra, Vivek Singh, Somesh
MOHIT ALIAS SONU v. STATE OF U.P.
91
Chandra Jha for the Appellants.
Ashok Bhan, Jaspreet Gogia, Vipin Gogia, Brijendra
Singh, Ravi Prakash Mehrotra, Bharti Tyagi for the
Respondents.
The Judgment of the Court was delivered by
M.Y. EQBAL, J: 1. Leave granted.
A
B
2. This appeal is directed against the order dated 28th
October, 2009 passed by the High Court of Judicature at c
Allahabad in Criminal Miscellaneous Application No. 22823 of
2009 whereby the order dated 3rd August, 2009 passed by
learned Additional Sessions Judge, Fast Track Court No. 2,
Mathura, rejecting the application moved by the complainant/
respondent No. 2 herein under Section 319 of the Code of 0
Criminal Procedure, 1973 in Sessions Trial No. 420 of 2007
was set aside and the trial court was directed to summon the
accused/appellants herein.
3. The complainant/respondent No. 2 herein (Deepak)
lodged an FIR naming seven persons as accused regarding
E
the occurrence which took place on 7th February, 2003 at 10.30
p.m. stating that the accused persons named in the FIR armed
with lathi, danda and hockey caused injuries to his uncle Kamta
Prasad as well as to the complainant. The complainant was
medically examined on 8th February, 2003 and a lacerated
F
wound of 4 cm x 0.8 cm scalp deep on left side back of his
skull was reported by the doctor. Kamta Prasad succumbed
to his injuries alleged to have been caused by the accused.
The accused were named in the FIR vide Case Crime No. 44/
03 under Sections 147, 323, 504, 506, 304 of the Indian Penal
G
Code (in short, "l.P.C."). The injured complainant as well as
other witnesses were examined by the Investigating Officer
(1.0.), but the 1.0. submitted charge-sheet only against five
accused leaving the names of two a ceased who are appellants
before us. After committal of the case for trial, the trial court in
H
92
,SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
S.T. No. 420 of 2007 examined the complainant as PW-1. In
his examination- in-chief, the complainant specifically stated the
role of the appellants herein in the occurrence. The complainant
then moved an application under Section 319 of the Code of
Criminal Procedure, 1973 (in short, 'Cr.P.C.') for summoning
B
the appellants herein as accused in the case. However, the trial
court vide order dated 25th July, 2008 disposed of the
application in view of the fact that cross-examination of PW-1
had not completed and the fact had not been cleared from the
witness that there existed probability of the conviction of the
c appellants herein. On a Criminal Miscellaneous Application
being filed under Section 482 of Cr.P.C. before the High Court
of Judicature at Allahabad against the above order, the High
Court vide judgment and order dated 3rd September, 2008
found no error in the order passed by trial court as the trial court
0
had till then not finally decided the question of summoning the
appellants and had simply postponed the issue as it thought
that the matter should receive its due and proper consideration
only after the cross-examination of the witness is over.
Subsequently, PW-2 Vivek and PW-3 Deepak Kumar Dubey
were also examined apart from the complainant. The second
E
application filed under Section 319, Cr.P.C. was also rejected
by the trial court vide order dated 3rd August, 2009 after
considering various legal pronouncements, discussing the
statements of PW-1, PW-2 and PW-3 and finding out that the
evidence on record is improper and contradictory. Challenging
F
this order, the complainant again filed a Criminal Miscellaneous
Application under Section 482, Cr.P.C. which was allowed by
the High Court vide order dated 28th October, 2009 impugned
herein holding that the lower court committed error in rejecting
the application of the complainanUrespondent No.2 for
G summoning the accused-appellants herein despite the prima
facie evidence adduced by the prosecution disclosing their
involvement in the alleged occurrence for which the other
accused are facing the trial on the same facts of the case. The
High Court by the impugned order directed the lower court to
H
MOHIT ALIAS SONU v. STATE OF U.P.
93
[M.Y. EQBAL, J.]
summon the accused-appellants herein as per provisions under
A
Section 319, Cr.P.C.
4. In arriving at its conclusion, the High Court in the
impugned order observed as under:
"3 ..... From the perusal of the statements of the witnesses,
it appears that the accused persons named Mohit and
Sarthak also have committed the offence. There is ample
evidence against the accused persons. They are named
B
in the F.l.R. They are named in the statements of the
witnesses recorded by the investigating officer as per
C
provisions under section 161 Cr.P.C. There is specific role
attributed to the accused persons and it cannot be said
that they have not participated in the crime. The learned
lower court relying on the assertion made on the affidavit
of some witnesses which cannot be read at the stage of D
summoning the accused persons under section 319
Cr.P.C., wrongly discussed the evidence of the witnesses
on record in a cursory manner thereby rejecting the
application of the applicant. ...... therefore, they are liable
to be summoned.
E
xxx
xxx
xxx
6. In the light of the law as is aforesaid, the perusal of the
impugned order revealed that lower court committed error
thereby discussing the evidence and appreciating the
F
contradictions and the affidavits on record, thereby finding
that the evidence of the witnesses is not accertable being
irrelevant in the absence of any motive against the
accused persons sought to be summoned in this case.
Since the witnesses have stated that accused Mohit alias
G
Sonu and Sarthak alias Babbal have taken part in inflicting
injuries to Deepak and Kamta Prasad, therefore the case
of accused Mohit and Sarthak cannot be set apart from
other accused persons charge sheeted and against whom
the trial is going on, thereby finding the improbability of the
H
A
B
c
D
E
F
G
H
94
SUPREME COURT REPORTS
[2013) 7 S.C.R.
conviction of accused Sarthak and Mohit regarding their
participation in the occurrence along with other co-accused
persons facing trial. The citations referred for taking
recourse of the finding by lower court is not of the nature
for finding the conclusive proof of conviction of the accused
persons sought to be summoned rather it is held therein
that there must be reasonable prospectus of the case
against the newly added accused ending in the .conviction
for the offence concerned for summoning of the accused.
Reasonable prospectus of conviction has been wrongly
discussed by the lower court replacing it to the conclusive
proof of the conviction with a detailed discussion ....... The
discretionary power vested in the court as per provisions
under section 319 Cr.P.C. is supposed to be used thereby
finding a prima facie case made out against the accused.
While there is allegation of same contribution of the
accused Sarthak and Monu in the alleged occurrence as
remained of other co-accused persons facing trial, how the
case of Monu and Sarthak may be separated giving
interim finding affecting the case of the other co-accused
too in the case, trial of which is going on before the court
on the same allegations against the accused in trial.
)()()(
xxx
)()()(
8. Thus the learned lower court thereby analyzing the
evidence on record wrongly took recourse of the facts that
PW-2 and PW-3 have not proved the injuries on their
persons despite the fact that they were stating that the
injuries were received by them in the alleged occurrence.
Similarly it is also wrongly analysed at this stage by the
learned lower court that Mudgal (weapon of assault) by
which the deceased is said to have been assaulted, is not
mentioned in the F.1.R. Merely calling for Ramveer may not
be the outcome of the alleged occurrence is also wrongly
held at this stage by the learned lower court because the
learned lower court was not supposed to give finding at
MOHIT ALIAS SONU v. STATE OF U.P.
95
[M.Y. EQBAL, J.]
this stage pertaining to the facts of entire trial to be
A
conducted by the learned lower court. Similarly the alleged
affidavits on record have also been wrongly considered for
the purpose of finding the contradictions in the statements
of the witnesses examined before the trial court."
Hence, this appeal by special leave.
B
5. Mr. Amarendra Sharan, learned senior counsel
appearing ·for the appellants while assailing the impugned order
passed by the High Court as being illegal and wholly without
jurisdiction, raised two important points for consideration. c
Learned counsel firstly contended that the order passed by the
Sessions Court on the application under Section 319 Cr.P.C.
refusing to issue summons to the non-accused person ought
to have been challenged by the complainant before the High
Court invoking its revisional jurisdiction under Section 397/401
Cr.P.C. According to the learned counsel, application of the
complainant before the High Court under Section 482 of
Cr.P.C. challenging the order passed under Section 319,
Cr."P.C. was not maintainable. Secondly, Mr. Sharan submitted
that, in any view of the matter, the High Court while exercising
its inherent jurisdiction under Section 482 Cr.P.C. ought to have
given notice and opportunity of hearing to the appellants before
the order of the Sessions Judge was set aside. On the merits
of the appeal, learned counsel submitted that the High Court
while deciding the petition of the complainant under Section
482 Cr.P.C. on the first motion upset the reasoned order of the
trial court and despite the fact that the entire evidence adduced
till the decision on the application under Section 319 Cr.P.C.
D
E
F
by the trial court was not before the High Court, even then the
High Court exercised its discretion without issuing notice and
giving opportunity of hearing to the appellants. On the merits
G
of the case, learned counsel contended that for the purpose of
exercising power under Section 319 Cr.P.C., the Court must
be satisfied about the existence of sufficient evidence on
record and not only on the basis of prima facie case. Learned
counsel contend.ed that the trial court rightly refused to summon
H
96
SUPREME COURT REPORTS
[2013) 7 S.C.R.
A the appellants on the ground that the witnesses were
contradicted on their earlier statement and that the witnesses
in their statement under Section 164 Cr.P.C. have denied the
presence of these appellants. Learned counsel put reliance on
the decision of this Court in Sarabjit Singh and Another v. State
B of Punjab and Another (2009) 16 SCC 46; Hardeep Singh v.
State of Punjab and Others (2009) 16 SCC 785 and Municipal
Corporation of Delhi v. Ram Kishan Rohtagi and Others
(1983) 1 sec 1.
6. On the other hand, Mr. Ashok Bhan, learned senior
C counsel appearing for the respondent/complainant submitted
that from the evidence adduced by the witnesses, the role
played by the appellants has become apparent and the trial
court has committed serious error of law in refusing to issue
summons to the non-accused appellants. Learned counsel
D relied upon the decisions of this Court in Lok Ram v. Nihal
Singh and Another (2006) 10 SCC 192; and Sarojben
Ashwinkumar Shah and Others. v. State of Gujarat and
Another(2011) 13 SCC 316. Mr. Bhan contended that it is the
discretion of the Court to give notice to the accused for the
E purpose of issuing summons against them. According to the
learned counsel, there cannot be pre-cognizance herein.
Further, the High Court in exercise of power under Section 482
Cr.P.C., can see the correctness and propriety of the order
passed by the trial court. Learned counsel relied upon the
F decision of this Court in Bangarayya v. State of Kamataka and
Others (201 O) 15 sec 114.
7. Before going into the merits of the case, we would like
to answer the two important points raised by the appellants i.e.,
G (i) whether petition under Section 482 Cr.P.C. before the High
Court challenging the order of the Sessions Court passed
under Section 319 Cr.P.C. is maintainable; and (ii) whether the
High Court before passing the impugned order ought to have
given notice and opportunity of hearing to the appellants.
H
8. Since both the points raised by Mr. Amarendra Sharan,
MOHIT ALIAS SONU v. STATE OF U.P.
97
[M.Y. EQBAL, J.)
learned senior counsel appearing for the appellants, being
A
interlinked, they are discussed here together. However, before
discussing those points, we would like to refer some of the
relevant provisions of the Code of Criminal Procedure.
9. Section 397 Cr.P.C. confers power of revision on the
8
High Court or any Sessions Court, which reads as under:-
"397. Calling for records to exercise powers of
revision- (1) The High Court or any Sessions Judge may.
call for and examine the record of any proceeding before
any inferior Criminal Court situate within its or his local
C
jurisdiction for t~e purpose of satisfying itself or himself as
to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior Court, and
may, when calling for such record, direct that the execution
D
of any sentence or order be suspended, and if the accused
is in confinement, that he be released on bail or on his own
bond pending the examination of the record.
Explanation-- All Magistrates, whether Executive or
E
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions
Judge for the purposes of this sub-section and of Section
398.
(2) The powers of revision conferred by sub-section (1)
F
shall not be exercised in relation to any interlocutory order
passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by
any person either to the High Court or to the Sessions
G
Judge, no further application by the same person shall be
entertained by the other of them."
10. Section 399 deals with Sessions Judge's power of
revision, whereas Section 401 deals with the power of revision
of the High Court. Section 401 reads as under:-
H
•
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2013) 7 S.C.R.
"401. High Court's powers of revision-- (1) In the case of
any proceeding the record of which has been called for by
itself 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 sections 386, 389, 390
and 391 or on a Court of Session by section 307 and,
when the Judges composing the Court of revision are
equally divided in opinion, the case shall be disposed of
in the manner provided by section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or by
pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one of
conviction.
(4) Where under this Code an appeal lies and no appeal
is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High Court
by any person and the High Court is satisfied that such
application was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the interests
of justice so to do, the High Court may treat the application
for revision as a petition of appeal and deal with the same
accordingly."
11. From bare reading of the aforesaid two provisions, it
is clear that in exercise of revisional power under the aforesaid
provisions, the High Court can call for the records of any criminal
court and examine"the correctness, legality or propriety of any
H finding, sentence or order, recorded or passed, and as to the
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regularity of any proceeding of such inferior court. However,
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sub-section (2) of Section 397 puts a restriction on exercise
of such power in relation to an interlocutory order passed by
the criminal courts in any appeal, inquiry, trial or other
proceeding.
12. Similarly, Section 401 empowers the High Court to call
8
for any record in order to examine the correctness, legality or
propriety of any order, finding or sentence passed by the inferior
courts. However, sub-section (2) categorically provides that no
order shall be made by the High Court in exercise of revisional
jurisdiction affecting and prejudicing the right of the accused
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or other person, unless he has been given opportunity of hearing
either personally or by pleader in his own defence.
13. Section 482 Cr.P.C. which deals with the inherent
power of the High Court is extracted hereinbelow:-
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"482. Saving of inherent power of High Court--
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
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Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice."
14. The power under Section 397 vis-a-vis Section 482
of Cr.P.C. has been elaborately discussed and explained in the
case of Madhu Limaye v. State of Maharashtra (1977) 4 SCC
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551. The facts of that case were that the appellant was said to
have made certain statements and handed over a press handout containing defamatory statements against the then Law
Minister of the respondent-State. The State Government
decided to prosecute the appellant for offence under Section
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500 IPC and accorded necessary sanction. On the Public
Prosecutor filing the complaint, the Sessions Judge took
cognizance of the offence under Section 199(2) Cr.P.C. The
appellant contended that even assuming allegations imputed
to him were defamatory, they were not made against the
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Minister in discharging his public functions, but only in his
personal capacity. The Sessions Judge rejected these
contentions. On revision, the High Court held that a revision
petition was not maintainable under Section 397(2) Cr.P.C.
since the order of the Sessions Judge was an interlocutory
B order. A 3- Judge Bench of this Court discussing the object of
the two provisions i.e. Section 397(2) and Section 482 of
Cr.P.C. observed as under:-
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"10. As pointed out in Amar Nath's case [(1977) 4 SCC
137] the purpose of putting a bar on the power·of revision
in relation to any interlocutory order passed in an appeal,
inquiry, trial or other proceeding, is to bring about
expeditious disposal of the cases finally. More often than
not, the revisional power of the High Court was resorted
to in relation to interlocutory orders delaying the final
disposal of the proceedings. The Legislature in its wisdom
decided to check this delay by introducing sub-section (2)
in Section 397. On the one hand, a bar has been put in
the way of the High Court (as also of the Sessions Judge)
for exercise of the revisional power in relation. to any
interlocutory order, on the other, the power has been
conferred in almost the same terms as it was in the 1898
Code. On a plain reading of Section 482, however, it would
follow that nothing in the Code, which would include 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 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 subsection (2) of Section 397 operates only in exercise of the
revisional power of the High Court, meaning thereby that
the High Court will have no power of revision in relation to
any interlocutory order. Then in accordance with one of the
MOHIT ALIAS SONU v. STATE OF U.P.
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[M.Y. EQBAL, J.]
other principles enunciated above, the inherent power will
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come into play, there being no other provision in the Code
for the redress of the grievance of the aggrieved party. But
then, if the order assailed is purely of an interlocutory
character which could be corrected in exercise of the
revisional power of the High Court under the 1898 Code,
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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 c
contained in Section 397(2) can limit or affect the exercise
of the inherent power by the High Court. But such cases
would be few and far between. The High Court must
exercise the inherent power very sparingly. One such case
would be the desirability of the quashing of a criminal 0
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
witt:iout jurisdiction and even after his acquittal a second
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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
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stopping the criminal proceeding as early as possible,
instead of harassing the accused up to the end? The
answer is obvious that the bar will not operate to prevent
the abuse of the process of the Court and/or to secure the
ends of justice. The label of the petition filed by an G
aggrieved party is immaterial. The High Court can examine
the matter in an appropriate case under its inherent powers.
The present case undoubtedly falls for exercise of the
power of the High Court in accordance with Section 482
of the 1973 Code, even assuming, although not accepting,
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that invoking the revisional power of the High Court is
impermissible."
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15. This Court further observed:-
"13. In S. Kuppuswami Rao v. King [AIR 1949 FC 1]
Kania, C.J. delivering the judgment of the Court has
referred to some English decisions at pp. 185 and 186.
Lord Esher M.R. said in Salaman v. Wamer(189~) 1 QB
734:
"If their decision, whichever way it is given, will, if it
stands, finally dispose of the matter in dispute, I
think that for the purposes of these rules it is final.
On the other hand, if their decision, if given in one
way, will finally dispose of the matter in dispute but,
if given in the other, will allow the action to go on,
then I think it is not final, but interlocutory."
To the same effect are the observations quoted from the
judgments of Fry L.J. and Lopes L.J. Applying the said.
test, almost on facts similar to the ones in the instant case,
it was held that the order in revision passed by the High
Court [at that time there was no bar like Section 397(2)]
was not a "final order'' within the meaning of Section 205(1)
of the Government of India Act, 1935. It is to be noticed
that the test laid down therein was that if the objection of
the accused succeeded, the proceeding could have ended
but not vice versa. The order can be said to be a final order
only if, in either event, the action will be determined. In our
opinion if this strict test were to be applied in interpreting
the words 'interlocutory order' occurring in Section 397(2),
then the order taking cognizance of an offence by a Court,
whether it is so done illegally or without jurisdiction, will not
be a final order and hence will be an interlocutory one.
Even so, as we have said above, the inherent power of
the High Court can be invoked for quashing such a criminal
proceeding. But in our judgment such an interpretation and
MOHIT ALIAS SONU v. STATE OF U.P.
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[M.Y. EQBAL, J.]
the universal application of the principle that what is not a
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final order must be an interlocutory order is neither
warranted nor justified. If it were so it will render almost
nugatory the revisional power of the Sessions Court or the
High Court conferred on it by Section 397(1). On such a
strict interpretation, only those orders would be revisable
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which are orders passed on the final determination· of the
action but are not appealable under Chapter XXIX of the
. Code. This does not seem to be the intention of the
Legislature when it retained the revisional power of the
High Court in terms identical to the one in the 1898 Code. c
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
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appeal lies? Such cases will be very few and far between.
It has been pointed out repeatedly, vide for example, River
Wear Commissioners v. William Adamson [(1876-77) 2
AC 743] and R.M.D. Chamarbaugwal/a v. Union of India
[(1957) SCR 930] that although the words occurring in a
particular statute are plain and unambiguous, they have to
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be interpreted in a manner which would fit in the context
of the other provisions of the statute and bring about the
real intention of the Legislature. On the one hand, the
Legislature kept intact the revisional power of the High
Court and, on the other, it put a bar on the exercise of that
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power in relation to any interlocutory order. In such a
situation it appears to us that the real intention of the
Legislature was not to equate the expression "interlocutory
order" as invariably being converse of the words "final
order''. There may be an order passed during the course
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of a proceeding which may not be final in the sense
noticed in Kuppuswami case (supra), but, yet it may not
be an interlocutory order - pure or simple. Some kinds of
order may fall in between the two. By a rule of harmonio.us
construction, we think that the bar in sub-section (2) of
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Section 397 is not meant to be attracted to such kinds of
intermediate orders. They may not be final orders for the
purposes of Article 134 of the Constitution, yet it would not
be correct to characterise them as merely interlocutory
orders within the meaning of Section 397(2). It is neither
advisable, nor possible, to make a catalogue of orders to
demonstrate which kinds of orders would be merely, purely
or simply interlocutory and which kinds of orders would be
final, and then to prepare an exhaustive list of those types
of orders which will fall in between the two; The first two
kinds are well known and can be culled out from many
decided cases. We may, however, indicate that the type
of order with which we are concerned in this case, even
though it may not be final in one sense, is surely not
interlocutory so as to attract the bar of sub-section (2) of
Section 397. In our opinion it must be taken to be an order
of the type falling in the middle course."
16. In the case of Amar Nath & Ors. v. State of Haryana
& Ors. (1977) 4 SCC 137, two provisions i.e Sections 397 and
482 have been considered and term 'interlocutory order' has
E been fully discussed. In that case, an FIR was lodged
mentioning a number of accused persons including the
appellants as having participated in the occurrence which
resulted in the death of the deceased. The police after holding
investigations, submitted a charge-sheet against the other
F 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. After submission of the final
report, the Judicial Magistrate accepted the report and set the
G appellants at liberty. The complainant thereafter filed a revision
petition before the Additional Sessions Judge against the order
of the Judicial Magistrate releasing the appellants, but the
same was dismissed. The informant filed a regular complaint
before the Judicial Magistrate against all the 11 accused
H including the appellants. The Magistrate after having examined
MOHIT ALIAS SONU v. STATE OF U.P.
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[M.Y. EQBAL, J.]
the complainant and going through the record dismissed the
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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, who this time
allowed the revision petition and remanded the matte'r to the
Judicial Magistrate for further enquiry. The Judicial Magistrate
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on receiving the order of the Sessions judge issued summons
to the appellants straightaway. The appellants then moved the
High Court. under Sections 482 and 397 of the Code for
quashing the order of the Judicial Magistrate, mainly on the
ground that the Magistrate had issued the summons in a c
mechanica.1 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 Magistrate summoning the appellants was an
interlocutory order, a revision to the High Court was barred by
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virtue of sub-section (2) of Section 397 of Cr.P.C. The High
Court Jurther held that as the revision was barred, the Court
could not take up the case under Section 482 in order to quash
the very order of the Judicial Magistrate under Section 397 of
Cr.P.C. Answering the question raised, Hon'ble Fazal Ali, J.
delivering the judgment on behalf of the Bench, observed :-
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'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-section (2) of Section 397 of the 1973 Code the
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inherent powers contained in Section 482 would not be
available to defeat the bar contained in Section 397(2).
Section 482 of the 1973 Code contains the inherent
powers of the Court and does not confer any new powers
but preserves the powers which the High Court already
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possessed. A harmonious construction of Sections 397
and 482 would lead to the irresistible conclusion that where
a particular order is expressly barred under Section 397(2)
and cannot be the subject of revision by the High Court,
then to such a case the provisions of Section 482 would
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not apply. It is well 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 exercise of inherent powers."
17. So far as the question as to whether the order of the
Judicial Magistrate was an interlocutory order is concerned,
Their Lordships after discussing the legislative bac:,around of
the provisions held:-
"6 .... The main question which falls for determination in this
appeal is as to what is the connotation of the term
"interlocutory order" as appearing in sub-section (2) of
Section 397 which bars any revision of such an order by
the High Court. The term "interlocutory order'' is a term of
well-known legal significance and does not present any
serious difficulty. It has been used in various statutes
including the Code of Civil Procedure, Letters Patent of
the High Courts and other like statutes.