S K MAHAJAN Vs. MUNICIPALITY

JUDGEMENT

(1.) WE are called upon to answer three different questions of law arising in three criminal references Nos. 27 of 1977, 61 of 1978 and 28 of 1979 which, if stated more exhaustively. should read as under:

(2.) A charge Under Section 7/16 of the Prevention of Food Adulteration Act was framed against the petitioner S. K. Mahaian in Criminal Reference No, 27 of 1977 by Munsiff judicial Magistrate, Jammu, by his order dated 8-9-1976. He challenged it before Chief Judicial Magistrate, Jammu, who by his order dated 25-1-1977 made a recommendation to this Court that the charge being unwarranted may be quashed. While this revision was still pending in this Court, large scale amendments were made to the Code of Criminal Procedure hereinafter the Code by Act No. XXXVII of 1978, hereinafter the Amending Act, which came into force on 1st Apr. 1979. one of these being insertion of Sub-section (4-a) of Section 435 which reads as under: (4-a) 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.) A preliminary objection, based upon the view taken by this Court in its two earlier cases, namely. Narrinder Kumar v. State, Cr. Revision petition No. 24 of 1980 decided on 10-2-1981 and State v. Mohd. Zaman Shah 1981 Srina-gar LJ 38 : 1981 Cri LJ 783 that an order framing a charge being interlocutory in nature, is not revisable, was raised on behalf of the respondent. This objection was sought to be met by the opposite party in two ways; one, that the Amending Act is not retrospective in nature and has, therefore, no application to pending cases, and two, that an order framing a charge, in any event, is final in nature, hence revisable. Reliance was placed upon a bench decision of the Bombay High Court in Mohan Lai Dev-danbhai Chokshi v. J. S. Wagh 1981 Cri LJ 454 wherein a contrary view has been taken that an order framing a charge is not interlocutory hence revisable. Since both the courts had placed reliance upon the same authority, namely, V. C. Shukla v. State through C. B. I. for arriving at two opposite conclusions, the learned Acting Chief Justice considered it necessary to make a reference to a larger Bench for an authoritative pronouncement on questions Nos, (1) and (2) reproduced heretofore and made a reference accordingly.