LAWS(ALL)-1998-9-53

PRAKASH Vs. STATE OF U P

Decided On September 15, 1998
PRAKASH Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) G. P Mathur, J. A learned Single Judge has referred the following question for decision by larger bench: "whether an order of remand could be subject-matter of a revision under Section 397/401,cr. P. C. or not?"

(2.) SUB-section (2) of Section 397, Cr. P. C. lays down that the power of revision conferred by sub-section (1) shall not be exercised in relation to any inter locutory order passed in any appeal, en quiry, trial or other proceeding. The ex pression "interlocutory order" has not been defined in the Code. It will, therefore, be useful to refer to its meaning as given in some of the dictionaries: THE NEW LEXCION WEBSTER's DICTIONARY: Interlocutory.-Pronounced and arising during legal procedure, not final. WEBSTER's THIRD NEW INTERNA TIONAL DICTIONARY : Not final or definitive, made or done during the progress of an action; WHARTON's LAW LEXICON : An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties e. g. , an order appointing a receiver or granting an injunction, and a motion for such an order is termed an interlocutory motion. BLACK's LAW DICTIONARy Provisional; temporary; not final. Some thing intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.

(3.) 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.