MOHANLAL DEVDANBHAI CHOKSHI Vs. J S WAGH

JUDGEMENT

(1.) This matter is placed before us as the following question has been referred by Mr. Justice Pratap for decision by Division Bench : Is an order framing a charge an "interlocutory order" within the meaning of Section 397(2) of the Code of Criminal Procedure, 1973 ? Criminal Case No. 381/CW/77 is pending in the Court of the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay. That case is against the three accused who are the petitioners before us. The allegation against the accused is that they have committed certain offences under the Customs Act. Evidence was led before the Magistrate before framing charge. Thereafter, the Magistrate considered the question as to whether there exist sufficient grounds for framing charge. The Magistrate passed an order dated 27th April 1979 that a prima facie case has been made out against the accused. Consequently, a formal charge for having committed offences under Sections 135(a) and 135(a)(ii) was framed. It is this order and the framing of charge that is being challenged by the petitioners. This revision application came up before Mr. Justice Pratap for hearing. On 13th August 1979 Mr. Justice Pratap, after hearing the learned advocates appearing on behalf of the petitioners and the respondents, found that in view of the importance of the above question it was desirable to refer the matter to the Division Bench.

(2.) Section 397 empowers the High Court and the Sessions Court to call for and examine any record of a proceeding before a Criminal Court for the purpose of satisfying as to the correctness, legality and propriety of any finding, sentence of order. Sub-section (2) is however material as the contention of the respondents is that the impugned order of framing charge is an interlocutory order and as such, not revisable. That sub-section reads as follows :

(3.) Mr. Tipnis for the petitioners, however, argued that the question as to whether the framing of a charge is an interlocutory order or not has now been conduced by the decisions of the Supreme Court. According to him, these decisions have laid down that such an order is not an interlocutory order and that at the most it would be an intermediate order which can be revised under Section 397. He relied upon the decision in the case of Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1978 Cri LJ 165). In that case, a complaint was filed against the accused under Section 199(2) of the Criminal procedure Code with an allegation that the accused has committed an offence of defamation against Mr. A. R. Antulay, the then Law Minister of the Government of Maharashtra. The accused-appellant raised certain contentions in the Sessions Court alleging that the defamatory statements were not in respect of the conduct of the complainant in the discharge of his public functions, and as such, the Session Court is not entitled to take cognizance. Another contention was that the sanction given by the Government was bad and that the Chief Secretary has not applied his mind and had given the sanction in a mechanical manner. The Sessions Judge rejected these contentions and framed a charge against the appellant under Section 500 of the Penal Code. The appellant challenged this order of the Sessions Judge in this Court. A preliminary objection was raised that the said order was an interlocutory order and as such, it could not be revised. This contention was accepted. The accused-appellant, therefore, took the matter before the Supreme Court in appeal. Thus the question arose in Madhu Limaye's case as to what is meant by an interlocutory order under Section 397(2) of the Code of Criminal Procedure. We would like to reproduce the following relevant headnote :