Awadh Narain Lal v. State Of U.P.

S.K Mookerji, J.:— This is an application under Section 482, Cr. P.C by Avadh Narain Lal for quashing the order dated September 24, 1981 passed by Sri J.P Sharma, Special Judge, Kanpur in Special Trial No. 8 of 1981.

2. The facts of the case are that there are two accused, Avadh Narain and Bans Gopal, who have been charge sheeted by the Sub-Inspector of Police of Police Station Fazalganj, Kanpur for offences under Sections 161, I.P.C Section 5(2) of the Prevention of Corruption Act and Section 120-B, I.P.C The applicant Avadh Narain was Amin, Sales tax, admittedly, a public servant, and accused Bans Gopal, a Naib-Tehsildar, Collection. A trap was laid in which the above two named accused were apprehended. It is further stated that the accused Avadh Narain Lal was arrested on the spot and accused Bans Gopal surrendered in court on April 21, 1980.

3. The occurrence is dated March 2, 1980. In this case the sanction for the prosecution in respect of Bans Gopal was riled by the prosecution, and is not in dispute or controversy in the present application under Section 482, Cr. P.C In the court below an objection was raised on behalf of the applicant Avadh Narain Lal that there was no sanction, and as such, the court could not take any cognizance against him in view of Section 6 of the Prevention of Corruption Act, 1947. This objection raised on behalf of the applicant Avadh Narain was overruled by the impugned order dated September 24, 1981 and it was held that if the public servant was not in service at the time when prosecution was launched, then no question of sanction arose. Hence, this application under Section 482, Cr. P.C On this application under Section 482, Cr. P.C on November 9, 1981 notice was issued and further proceedings in trial No. 8 of 1981 had been stayed.

4. I have heard the learned counsel for the parties. Sri R.N Pandey appearing for the applicant argued that in absence of the sanction as contemplated under Section 6 read with Section 197, Cr. P.C the entire proceeding before the Special Judge against Avadh Narain Lal was void abinitio, and the learned Special Judge had no jurisdiction to take cognizance of the offences under Section 161, I.P.C and Section 5(2) read with sub-section (d) of the Prevention of Corruption Act, 1947. The learned Assistant Government Advocate, Sri Dwivedi raised a preliminary objection that the application under Section 482, Cr. P.C was not at all maintainable as in the present case a revision was maintainable under Section 397 of the Code of Criminal Procedure, 1973. It was further urged on behalf of the State that in view of the decision in R.S Nayak v. A.R Antuley(1) no previous sanction was necessary as contemplated by section 6 of the Prevention of Corruption Act.

5. After hearing the parties at length I propose to decide the preliminary objection raised by the learned Assistant Government Advocate.

6. The first question in the present case which calls for determination, is whether the said order is revisable under Section 397 Cr. P.C Under the present amended Code of Criminal Procedure Section 397, has been incorporated and sub-section (2) of Section 397 provides as under:—

“The power of revision conferred by sub-section (i) shall not be exercised ??? relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding.”

7. Thus, sub-section 2 of Section 397 Cr. P.C now provides that the power of revision conferred by Section 397 shall not be excised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. Revisions shall, therefore, ??? against such order which is not interlocutor in nature. It is a settled law that the ??? ‘interlocutory’ is opposed to final. The courts in India have recognised a category of orders falling in the middle course be ween an interlocutory order and a final order which would escape the bar under Section 397(2) C.P.C In some cases such ??? have been termed as ‘intermediary ??? It is, therefore, clear that an order rejecting an application or plea of the accused which, it accepted, would have ??? clouded the proceedings, will not amount an interlocutory order and may fall with the category of an intermediary order. A plying this test to the facts of the ??? case, it is clear that in case the plea of the applicant is accepted as raised before ??? court below, then the proceedings against ??? applicant in the present case is that ??? court below had on jurisdiction to take cognizance of the offence against him exceed with the previous sanction, as contemplate under section 6 of the Prevention of Corruption Act. In the present case, the ??? below has rejected the plea on the ground that no such sanction was required in ??? case of the applicant. Thus, the impugned order of the court below rejecting the ??? of the applicant which, if accepted, would conclude the proceedings against him would not amount to an ‘interlocutory order.’ However, in my opinion, this order shall come within the category of intermediary orders. In consequence, the bar under Section 397(2) Cr. P.C will not come in the way of applicant to file a revision against the impugned order under Section 397, Cr. P.C in the present case.

8. In the present case instead of filing a revision under Section 397, Cr. P.C the applicant has filed the present application under Section 482, Cr. P.C This application is not at all maintainable. It is settled law that where a particular order is expressly barred under Section 397(2), Cr. P.C and cannot be subject of revision before the High Court, then to such a case the provisions of Section 482, Cr. P.C would apply. The inherent power under Section 482, Cr. P.C being an extraordinary and residuary power, is not available in regard to matters which have been specifically provided for under other provisions of the Code. Hence, as a general rule, the High Court would not exercise its power under Section 482, Cr. P.C where party could have, but did not, avail of the remedy under Section 397 Cr. P.C

9. In view of the above discussion, I am of the opinion that the application in the present case under Section 482, Cr. P.C is not maintainable. It is further pointed ut that at the stage of the last hearing an application had been moved on behalf of the applicant Avadh Narain Lal praying therein that the aforesaid application under Section 482, Cr. P.C be converted into a revision under Section 397/401, Cr. P.C I shall pass a separate order on that application.