STATE OF H.P. Vs. MAYA DASS

JUDGEMENT

(1.) Maya Dass and Nidhi Singh, who are respondents in this revision, are facing trial in Sessions Trial No 2 of 1989 before the learned Additional Sessions Judge, Mandi, Kullu and Lauhal and Spiti Districts, at Mandi. 2 The case of the prosecution is that one Saran Dass lost his life on account of blows of stick given to him by Maya Dass. By an order dated February 25 1989, the learned Addl. Sessions Judge framed charge under section 304 Part II, I. P. C. read with section 201 I. P. C against the accused persons. The prosecution had sought the framing of charge under cprtion302I P C on account of the assault aforesaid. The State has approached this Court for redress in the matter by filing the present revision petition under section 397/401 of the Code of Criminal Procedure read with section 482 thereof. 3 On June 1, 1989, this Court directed issue of notice, pending admission to the respondents. Shri M. C. Mandhotra has put in appearance on behalf of the respondents. Counsel for the parties prayed that this revision may be disposed of finally at the admission stage itself. 4 An objection of a preliminary nature has been raised by Shri Mandhotra to the effect that the present revision is not maintainable. He has urged that the order under challenge was an order of an interlocutory character which could not be assailed under section 397 (1) Cr. P. C. on account of the bar contained in sub -section (2) thereof. The objection has been elaborated by saying that the trial was proceeding before the learned Sessions Judge who had the power to alter or add to the charge at any time before the pronouncement of judgment. As such, it could not be said that by the order under challenge any part of the proceedings before the trial Judge had come to an end so as to take the order out of the category of an interlocutory order.

(2.) It is true that section 397 (2) bars interference with an order of an interlocutory character by the Court. The provision was enacted with a view to curtail the prolongation of the proceedings by interference by the superior court with orders of an interlocutory character during the progress of the trial. It is also true that the concept of an interlocutory order is the same in proceedings before a court whether they be of a civil nature or a criminal character. This is clear from the observations made by the Supreme Court in V. C. Shukla v. State through C. B. /., AIR 1980 SC 962, when it said (in paragraph 34 of the report) that: .........This Court as also the Federal Court have clearly pointed out that so far as the tests to be applied to determine whether an order is final or interlocutory, apply as much to a civil case as to a criminal case........." Yet, it is the nature of the order which comes up for examination before a court which has to be looked into for deciding whether it is an order of an interlocutory nature so as to escape scrutiny under section 397 of the Code of Criminal Procedure.

(3.) In V. C. Shukla the Supreme Court was examining the meaning to be given to the expression "interlocutory order in the context of an appeal under section 11 of the Special Courts Act, 1979. In that context, it referred to a very large number of its earlier decisions and, by majority, came to the ultimate conclusion that the order under challenge before it was an interlocutory order against which no appeal lay under section 11 of the Special Courts Act. What, however, was observed in the earlier part of paragraph 34 is of significance. The relevant observations are these: "Applying these tests to the order impugned we find that the order framing of the charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. It is true that if the Special Court would have refused to frame charges and discharged the accused, the proceedings would have terminated but that is only one side of the picture. The other side of the picture is that if the Special Court refused to discharge the accused and framed charges against him, then the order would be interlocutory because the trial would still be alive........." (emphasis supplied). What was emphasised by Shri Mandhotra, appearing for the accused -respondents, from out of the above observations, was that in the present case the trial was still on, though in respect of the offence under section 304 Part 11/201 I. P. C. As the trial proceeded, if the trial Judge came to the conclusion that the offence disclosed by the evidence against the accused person (Maya Dass) was one under section 302 I. P. C, be could alter the charge to one under that provision and follow the procedure contemplated by section 216 Cr. P. C.