(1.) The question referred to this bench is: "Whether u/ S. 397(2), Cr. P.C. the expression 'interlocutory order' covers the framing of the charge during the trial or not."
(2.) The petitioner before us is accused of sheltering Pakistani nationals in contravention of Ss. 13 and 14 of the Foreigners Act. Suffice for the purposes of this discussion that the learned trial Magistrate, after having taken due cognizance of the aforesaid offences, framed charge against the petitioner for the aforesaid offences on 22-4-89. The petitioner pleaded not guilty and claimed trial. However, he filed a revision petition before this Court u/ S. 397, Cr. P.C. against the order framing the charge. The office raised a preliminary objection regarding the maintainability of the revision petition. The matter was placed before a learned single Judge of this Court. Learned counsel for the petitioner urged before the learned single Judge that the objection had been raised by the office on account of a Division Bench decision of this Court in Nemichand v. State of Rajasthan 1988, Cri LR (Raj) 148. He contended that the Division Bench Judgment was based on the judgment of the Supreme Court in V. C. Shukla v. State, AIR 1980 SC 962. He further pointed out that V. C. Shukla's case was decided on the basis of the provisions of the Special Courts Act, 1979 and the ratio laid down in that case could not apply to interpretation to the provisions of S. 397, Cr. P.C. He referred to Amarnath v. State of Haryana, AIR 1977 SC 2185 and Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 and urged that Nemichand's case required reconsideration. Learned single Judge agreed with this contention and directed the matter to be placed before Hon'ble the Chief Justice for constituting a larger bench to decide the question reproduced above. Hon'ble the Chief Justice has referred the question to this bench for decision. This is how the matter has come up before us.
(3.) Since the matter was of vital importance and great significance, we issued notice to the learned Advocate General and the President, Bar Association, Jodhpur. Consequently learned Additional Advocate-General Shri J. P. Joshi and learned Public Prosecutor Shri K. L. Jasmatia have put in appearance. Shri R. K. Soni, Advocate has also intervened. We have heard the learned Counsel for the petitioner Shri N. L. Kukkar and the aforesaid advocates.
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