1. The third respondent was the registered owner of a bus bearing registration number K.L.Z 3972. The bus was running on the route Kozhi-kode-Badagara via Thanneerpandal. The permit was surrendered to the Regional Transport Officer by the owner. Subsequently the bus is plying on the route Vettathur-Malappuram. The petitioner in this revision petition purchased the bus from the registered owner in October 1979. In the next month, November, 1979, a complaint was preferred by the second respondent before the Court of the Additional Judicial First Class Magistrate, the first respondent. The complaint was:—
2. As per an agreement of 24-8-1977, the first accused in the complaint, the registered owner of the bus, third respondent herein, had sold the same to respondents 4 and 5 (accused 2 and 3). They in their turn sold the vehicle to one M.K Narayanan under an agreement of 16-10-1978, who subsequently in terms of an agreement dated 17-1-1979 sold the bus to the complainant for a total consideration of Rs. 1,30,000/- out of this Rs. 45,000/- was to be paid by the second respondent (the complainant) to M.K Narayanan, Rs. 53,000/- was to be paid by her to respondents 4 and 5 and Rs. 32,000/- to be retained by her for payment of the instalments of hire purchase. For non-payment of the amount due to them, respondents 4 and 5 seized and took possession of the vehicle. For an amicable settlement of the disputes between them, second, fourth and fifth respondents entered into an agreement on 12-3-1979. By this agreement, the bus was to be sold for a good price and till such sale the sixth respondent who figures as the fourth accused in the complaint was to be in management of the bus for a monthly remuneration of Rs. 300/-. Respondents 2, 4 and 5 were to share the profits from the plying of the bus in proportion to their investments over the bus. The complaint was that in violation of the agreement and in breach of trust, respondents 3 to 6 sold the bus to the petitioner without payment of the share and profits due to the second respondent. The petitioner, the purchaser of the bus is implicated in the following words:—
(reference in the context to respondents 4, 5 and 6—accused 2 to 4)
3. The accused are alleged to have committed offences punishable under Ss. 406 and 120B read with S. 34 of the Indian Penal Code. In her sworn statement the complainant states:—
Bus Abdullakutty Haji (petitioner herein) Bus Bus Abdullakutty Haji
4. What the second respondent said in her evidence before the Magistrate Court about the petitioner-fifth accused was:—
5. The learned Magistrate on these materials charged the petitioner along with respondents 3 to 6 as having committed an offence punishable under S. 406 read with S. 34 of the Indian Penal Code. Alleging that even on the basis of the averments in the complaint, in the sworn statement of the complainant and on her evidence (the allegations therein being not in any manner admitted by the petitioner), no criminal proceedings could be initiated against him, the petitioner has approached this court for quashing the complaint and the charge framed as far as he is concerned. The petition was filed by him under S. 482 of the Criminal Procedure Code. Subsequently the petition was converted into a revision petition under S. 397 of the said Code.
6. That the allegations concerned on the face of it in the complaint and also on the basis of the second respondent's sworn statement and her evidence in court below do not disclose a criminal liability on the petitioner. That can be safely stated. The second respondent's grievance is that respondents 4 to 6 here (accused 2 to 4) did not consult her or get her consent in the matter of sale of the bus to the petitioner. They have failed to pay her her share of Rs. 46,500/- the amount due to her and also her share of the profits due in respect of the period when the bus was under the management of the sixth respondent. Even if the petitioner was aware that respondents 4 to 6 had not consulted or got the consent of the second respondent, it is not possible to charge him as having committed an offence under S. 406 I.P.C even if a conspiracy is alleged bringing S. 34 I.P.C
7. However, the main argument which Mr. Ramakrishnan Nair, learned counsel for the second respondent, advanced in the matter was that no revision will lie in the matter because the order framing charges against the accused is purely an interlocutory order and therefore a revision petition under S. 397 is expressly barred under sub-section (2) thereof which reads as follows:—
“The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.”
8. Mr. Nair's argument is supported by a decision of this Court, that of Justice Janaki Amma in Jayaprakash v. State (1981 KLT. 100). The learned Judge said there:—
“Even assuming that the Court has gone wrong in framing the charge without giving reasons thereto the order framing the charge is an interlocutory proceeding and as such no revision will lie in view of S. 397(2) of the Code of Criminal Procedure. The framing of the charge does not put an end to the proceedings, the trial goes on until it culminates in acquittal or conviction. It is no doubt true, that if the Court had passed an order discharging the accused that would have been a final order. This is so because the order of discharge finally gives an end to the prosecution and therefore there is a termination of the entire proceedings, that is not so in the case of a proceeding framing the charge. Therefore, even assuming that the Court committed an irregularity in omitting to pass a formal order leading to the framing of a charge the said proceeding is not open to revision in view of S. 397(2) of the Code. The position is covered by the decision of the Supreme Court in V.C Shukla v. State (1980 Supp SCC 92 : AIR. 1980 SC. 962)”.
9. With respect, I am not sure whether this conclusion arrived at by the learned Judge is supported by the dictum in the Supreme Court decision relied on.
10. In that case-Shukla's Case, the question that arose was whether an order directing framing of charge against the accused passed by a Special Judge appointed under the Special Courts Act, 1979 could be appealed against under S. 11(1) of the Special Courts Act. Under that Section it is provided that ‘notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a special court to the Supreme Court both on facts and on law’. A preliminary objection to the maintainability of the appeal was taken by the Solicitor-General in the case, contending that S. 11 states with a non obstante clause which completely excludes the application of the Code of Criminal Procedure and therefore the Supreme Court cases rendered on an interpretation of S. 397(2) of the Code would have no application whatsoever in considering the scope and ambit of S. 11 of the Special Courts Act.
11. In respect of S. 397(2) of the Criminal Procedure Code, its scope had come up for consideration in some earlier cases before the Supreme Court. In dealing with the question whether an order summoning an accused was an interlocutory order or not it was observed in Amarnath v. State of Haryana ((1977) 4 SCC 137 : AIR. 1977 SC. 2185):—
“It seems to us that the term ‘interlocutory order’ in S. 397(2) of the 1973 Code has been used in a restricted sense and not in a broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an inter, locutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S. 397 of the 1973 Code. Thus for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of pending proceeding may no doubt amount to interlocutory orders against which no revision would lie under S. 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.”
12. In State of Karnataka v. L. Muniswamy ((1977) 2 SCC 699 : AIR. 1977 SC. 1489) Chandrachud, J. as be then was said:—
“On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D Ghadigaonkar, AIR. 1960 SC. 1113 and Century Spinning & Manufacturing Co. v. State of Maharashtra, (1972) 3 SCC 282 : AIR. 1972 SC. 545 show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial.”
13. No doubt in that case as pointed out in Shukla's Case the term ‘interlocutory order’ appearing in S. 397(2) of the Code did not arise for interpretation as the court, there was called upon to exercise its jurisdiction under S. 482 of the Code.
14. In the case of Parameshwari Devi v. State ((1977) 1 SCC 169 : AIR. 1977 SC. 403) where the question arose relating to the issue of summons under S. 94(1) of the Code of 1898, the Supreme Court said:—
“The Code does not define an interlocutory order, but it obviovsly is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub-section (2) of S. 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But does it not follow, that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights.”
15. The Supreme Court in that case had said that the Code does not define an interlocutory order and it does not include an intermediate order made during the preliminary stages of an enquiry or trial. However, the Court was laying greater stress on the fact that an order which was directed against a person who was not a party to the enquiry or trial and had, therefore no opportunity to place his point of view, could not be bound by any order passed against him.
16. Madhu Limave v. State of Maharashtra ((1977) 4 SCC 551 : AIR. 1978 S.C 47) is an important case on this question. The facts of that case were that the appellant before the Supreme Court, Mr. Madhu Limaye, accused in a case for an alleged offence under S. 500 I.P.C had challenged the jurisdiction of the concerned Sessions Court to proceed with the trial on certain grounds, which challenge was negatived by the Sessions Court which then framed charges against the accused under the provision aforementioned. The accused questioned this in revision before the High Court which threw out the revision petition, without entering into the merits of the contentions raised therein on the short ground that the revision petition was not maintainable. Justice Untwalia speaking for a bench of three Judges of the Supreme Court said that ordinarily and generally the expression ‘interlocutory order’ has been understood and taken to mean as a converse of the term ‘final order’. The learned Judge quoted then the following statement of law in Volume 22 of the third edition of Halsbury's Laws of England at page 742 of the same paragraph 1606—
“………a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.”
17. No doubt, in general, as Halsbury itself states a judgment or order which determines the principal matter in question is termed final but an order which does not deal with the final rights of the parties but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed ‘interlocutory’. Justice Untwalia points out that the strict test, that is, that an order can be said to be a final order only if it determines the action, is to be applied in interpreting the words ‘interlocutory order’ occurring in S. 397(2) of the Code, then the order taking cognizance of an offence by a Court, whether it is done illegally or without jurisdiction will not be a final order and hence will be an interlocutory one. But, the learned Judge proceeds to state, such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so, the Court says, it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred by S. 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. The Supreme Court points out that this does not seem to be the intention of the legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. There may be orders passed during the course of a proceeding which may not be final in the strict sense, that is one finally determining the procedure but at the same time may not be a pure or simple interlocutory order. Some kinds of orders may fall in between the two. The Supreme Court (speaking through Justice Untwalia) said that by a rule of harmonious construction the bar in S. 397(2) is not meant to be attracted to such kinds of intermediate orders. In the particular case, it was held that the impugned order therein though not final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of S. 397.
18. In Shukla's Case after referring to the aforementioned earlier Supreme Court cases, the Court said that they are in complete agreement with the principles enunciated in those cases, but in the particular case, the Court was concerned with a much larger question, viz., whether or not the term ‘interlocutory order’ used in S. 11(1) of the Act should be given the same meaning as the very term appearing in S. 397(2) of the Code. In other words, the question was whether S. 91(1) of the Act tightens or widens the scope of the term ‘interlocutory order’ as contained in S. 397(2) of the Code and as interpreted by the Supreme Court in the aforementioned earlier decisions.
19. After referring to the preamble of the Special Courts Act and the speech of the Union Home Minister at the time of the introduction of the Bill which was moved in Parliament and the observations of the Supreme Court in the Presidential Reference on the Bill before the said Act was passed, the Supreme Court speaking through Justice Fazal Ali observed that the heart and soul of the Act is speedy disposal and quick dispatch in the trial of these cases. It is, therefore, manifest that the provisions of the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case may be delayed. Indeed if this be the avowed object of the Act, that Parliament could not have intended that while the Criminal Procedure Code gives a right of revision against an order which, though not purely interlocutory, is either intermediate or quasi final, the Special Courts Act would provide a fullfledged appeal against such an order. That would have been against the very spirit of the Act. That was why a non-obstante clause was put in S. 11 of the said Act excluding the provisions of the Criminal Procedure Code including that in S. 397(2) as that would amount to frustrate the very object which S. 11 of the Act seeks to advance.
20. In meeting the argument advanced by the counsel for Mr. Shukla in that case that the non-obstante clause should be interpreted according to the salutary principles laid down by the Supreme Court, Justice Fazal Ali pointed out that it is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term interlocutory order as used in S. 11(1) of the Act. The Court concluded that on a true construction of S. 11(1) of the Special Courts Act end taking there into consideration the natural meaning of the expression ‘interlocutory order’ can be no doubt that the order framing charges against the appellant in the case under the Act was merely an interlocutory order which neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami's Case (AIR. 1949 FC 1) such an order would be an interlocutory order. Therefore, taking into consideration the natural meaning of interlocutory order and applying the non-obstante clause in S. 11(1) of the Special Courts Act, the position is that the provisions of the Code of Criminal Procedure are expressly excluded by the said clause and therefore S. 397(2) of the Code cannot be called into aid in order to hold that the order impugned is not an interlocutory order. The decisions of the Supreme Court, in the cases of Madhu Limaye and Amarnath were given with respect to the provisions of the Code, particularly S. 397(2), Justice Fazal Ali proceeds to state and that they were correctly decided and would have no application to the interpretation of S. 11(1) of the Special Courts Act, which expressly excludes the provisions of the Criminal Procedure Code by virtue of the non-obstante clause. In view of this clear pronouncement of the Supreme Court, it is not possible to conclude that no revision lies from an order framing the charge when the proceedings are within the purview of the Criminal Procedure Code.
21. Even if no revision lies, I have no hesitation to interfere in the matter under S. 482 Criminal Procedure Code which saves the inherent powers of this Court. It is no doubt true that where the legislature has provided for a particular mode of action or has vested an authority with power to act in a manner and has prescribed the conditions limiting the scope of such action, the Court have no inherent power to act outside those powers and limitations. It is also a general rule, as pointed out in Amarnath's Case ((1977) 4 SCC 137 : AIR. 1977 SC. 2185 at 2187)—that where a particular order is expressly barred under S. 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of S. 482 would not apply. However in a case where the impugned order clearly brings about a situation which is an abuse of the process of the Court or otherwise for the purpose of securing the ends of justice, then nothing contained in S. 397(2) of the Code can limit or affect the exercise of the inherent power by the High Court. No doubt such cases would be few and far between. As a rule the High Court must exercise the inherent power very sparingly. One such case would be the desirability of quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. So said the Supreme Court in Madhu Limaye's Case—(1977) 4 SCC 551 : AIR. 1978 SC. 47 at page 51 (para 9).
22. Jurisdiction under S. 482 to quash proceedings can only be exercised if the Court comes to the conclusion that even if the allegations contained in the complaint be taken to be true, they fail to constitute an offence. The Court should proceed on the assumption that the allegations contained in the complaint or chargesheet are correct. To prevent the abuse of the process of any Court or where the ends of justice so require nothing prevents the High Court from exercising its inherent powers while sitting in revision or when its powers are invoked even under a wrong provision. In this view, I would quash C.C 295 of 1975 pending before the Court of the Additional Judicial First Class Magistrate, Kozhikode as against the petitioner. Criminal Revision Petition is allowed accordingly.
23. Allowed.