ASHA Vs. ABDUL RAHIM

JUDGEMENT

(1.) THESE revisions, one by the State and the other by the complainant, are directed against an order passed on 10-4-1980, by the Sessions Judge, Srinagar. The order reads thus: After the opening address, it was found that a prima facie case under Sections 304/504/447 R. P. C. is made out against the accused Ab. Rahim Rather. The learned P. P. in his opening address conceded that it was not a case under Section 302 R. P. C. but prima facie, a case under Section 304 R. P. C. was made out against this accused. As against the accused Abdul Ahad Khan a prima facie case under Section 504 R. P. C. was made out. The accused Abdul Rahim Rather was, therefore, charged under Section 304/504/447 R. P. C. and the accused Abdul Ahad Khan was charged under Section 504 R. P. C. The contents of the charges were read out to the accused persons. They pleaded not guilty and claimed to be tried. So the P. P. should produce evidence in the case now. Put up the case on 28, 29 and 30th April, 1980, respectively. Sd/- Judge.

(2.) FOR the accused a preliminary objection was taken in regard to the maintainability of these revisions on the ground that no revision is competent against an interlocutory order. The argument of the learned Counsel for the accused is that the impugned order is in the nature of an interlocutory order, being an order framing the charge, which has been passed at the intermediate stages of the proceedings as a step towards the final determination of the guilt of the accused. For this, he relied upon the provisions of the newly added Clause (4-a) of Section 435 Cr. P. C. as also on the decisions reported in V. C. Shukla v. State 1980 Cri LJ 690 (SC) and Manohar Nath v. State of Jammu and Kashmir 1980 Cri LJ 292 : AIR 1980 NOC 72 (J and K) (FB): 2-A. Section 435 (4-A), Cr. P. C provides: The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order, passed in any appeal, inquiry, trial or other proceedings.

(3.) IN the case of Manohar Nath (supra), a Full Bench of this court has held that an "interlocutory order" is one which is passed at some intermediate stage of a proceeding to advance the cause of justice for the final determination of the rights between the parties. In the case of V. , C. Shukla, the Supreme Court has specifically observed that an order framing the charge is an interlocutory order. It necessarily follows that if the impugned order is an order framing the charge then no revision would lie. The argument of the learned Counsel for the revisionist, however, is that, in effect and substance, the impugned order is an order discharging the accused Abdul Rahim Rather, of the offence under Section 302, R. P. C. and so viewed, it is a revisable order. The argument has enough substance in it. The police submitted a charge-sheet complaining that the accused Abdul Rahim Rather had committed an offence under Section 302/447, R. P. C. The learned Sessions Judge framed a charge against him under Section 304/504/447, R. P. C. Thus he impliedly discharged the accused Abdul Rahim Rather under Section 302, R. P. C. The question is whether an implied order of discharge is contemplated by Section 268 of the Cr. P. C. I say so, because the learned Counsel for the accused contended that newly inserted Section 268, Cr. P. C. contemplates an express order of discharge only. Section 268, Cr. P. C. reads thus: If upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.