Y.S. Vidyasagar vs State Of AP

Tarlada Rajasekhar Rao, J

The present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), praying to set aside the order dated 22.09.2018 in Criminal Revision Petition No.25 of 2018 on the file of the Court of the Principal District & Sessions Judge, Vizianagaram District at Vizianagaram.

The facts, which are germane for disposal of the present case, are as follows:

On the report lodged by the In-charge Branch Manager of S.B.I., Kantakapalli Branch, Kothavalasa Police has registered the crime as F.I.R. No.09 of 2003 against the petitioner/accused for the offences punishable under Sections 409, 419, 466, 467, 468, 471 I.P.C. After due investigation, the police laid the charge and after filing of the charge sheet, learned Judicial Magistrate of the First class has issued summons to the accused after taking cognizance for the aforesaid offences in C.C.No.116 of 2005.

Be that as it may, the State has filed Interlocutory Application under Section 311A Cr.P.C. and Sections 45 and 73 of the Indian Evidence Act after examination of 28 witnesses to order for collection of specimen signatures or handwriting and to get opinion from the Expert or to compare the signatures or writing or seal with other admitted or proved signatures respectively. It is averred in the said Interlocutory Application that the accused forged the signatures of P.Ws.5 and 6 and some other witnesses and due to oversight, the signatures of the accused were collected for comparison with the exhibits marked for ascertaining truth for drawing correct inference in the matter.

The petitioner/accused herein has filed counter in Crl.M.P.No.2787 of 2017 in C.C.No.116 of 2005, stating that the present application filed by the State with a view to fill up lacunas of the prosecution and to overcome the cross-examination of the evidence part of the witnesses, which is in favour of the defence. At this juncture, the filing of the present application is abuse of process of law and causes prejudice to the accused and therefore prayed to dismiss the aforesaid Crl.M.P.No.2787 of 2017.

After considering the submissions made by both parties, the learned Magistrate has dismissed the application by an order dated 28.11.2017 stating that the present application is filed much belated stage after lapse of so many years and the said application would amount further investigation, which is not at all considerable one and accordingly dismissed the Crl.M.P.No.2787 of 2017.

Aggrieved by the said order dated 28.11.2017 in Crl.M.P.No.2787 of 2017 in C.C.No.116 of 2005, the State has filed Crl.R.P.No.25 of 2018 on the file of the Sessions Judge, Vizianagaram, under Section 397(1) of Cr.P.C. On perusal of the record and the order of the learned Magistrate, the learned Sessions Judge has allowed the Criminal Revision Petition, vide order dated 22.09.2018, by setting aside the order dated 28.11.2017 passed in Crl.M.P.No.2787 of 2017 with an observation that the filing of application with delay is not a ground to dismiss the application and it can be filed even at the stage of judgment and the reasons assigned by the learned Magistrate are not sound.

Aggrieved by the order dated 22.09.2018 in Crl.R.P.No.25 of 2018, the present Criminal Petition is filed by the petitioner/accused under Section 482 of Cr.P.C. on the seminal issue that against an interlocutory application, no revision is maintainable under Section 397 of Cr.P.C. and also relied on the judgment of the Apex Court titling as Girish Kumar Suneja v.CBI AIR 2017 SC 3620, and would contend that the comprehensive application is not maintainable in view of Rule 128 of the Criminal Rules of Practice, where in the present case, the State has filed one application for two reliefs which is contrary to the aforesaid rule, hence, he would urge to set aside the impugned order dated 22.09.2018 passed in Crl.R.P.No.25 of 2018.

Point for consideration is, whether the impugned order dated 22.09.2018 passed in Crl.R.P.No.25 of 2018 passed by the learned Sessions Judge is sustainable in law?

The plank of contention of the petitioner is that against interlocutory order, no revision under Section 397 of Cr.P.C. is maintainable.

It is appropriate/expedient to extract the relevant provision of Section 397 Cr.P.C. for the purpose of disposal of the present Criminal Petition, which reads thus:

"397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the egularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

(2) 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.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

As seen from the judgment of the Apex Court in Girish Kumar Suneja’s case (1 supra), there are three categories of orders that a Court can pass – final, intermediate and interlocutory. Against final order, a Court can exercise its revisional jurisdiction – that is in respect of a final order of acquittal or conviction. In respect of an interlocutory order, the Court cannot exercise its revisional jurisdiction.

As far as an intermediate order is concerned, the Court can exercise its revisional jurisdiction since it is not an interlocutory order. The intermediate order concerned came up for consideration first time in the judgment of the Apex Court in Amar Nath v. State of Haryana (1977) 4 SCC 137. The Apex Court elucidated the principle of intermediate order. The intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. The said proposition was followed in the case of Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 and also in the case of K.K.Patel v. State of Gujarat (2000) 6 SCC 195.

As interpreted by the Apex Court in Amar Nath’s case (2 supra), the interlocutory order which terminates the final proceedings is intermediate order.

For example, the order summoning or order for framing charges, though the said orders are interlocutory orders, when it is reversed, it culminates or terminates the entire proceedings. Those orders can be assailed under Section 397(1) Cr.P.C., as it amounts to final order. The applications filed under Sections 227 and 239 of Cr.P.C. for discharge, though the said orders are interlocutory orders, when it is reversed, it culminates or terminates the entire proceedings.

As per sub-section (2) of Section 397 of Cr.P.C., no revision is maintainable against the interlocutory order.

In the present case, the application was filed under Section 311A of Cr.P.C. and Sections 45 and 73 of the Indian Evidence Act. The said orders are interlocutory orders, as the orders would not terminate the entire proceedings, as held by the Apex Court in Amar Nath’s case (2 supra).

Therefore, as contested by the learned counsel for the petitioner, the order impugned is an interlocutory order, which does not terminate or culminate the entire proceedings. Therefore, the Sessions Court has no jurisdiction to entertain the application under Section 397 of Cr.P.C. against the order of the Magistrate filed under Section 311A of Cr.P.C. and Sections 45 and 73 of the Indian Evidence Act.

Therefore, the order impugned is liable to be set aside, as it is contrary to the judgments of the Apex Court referred supra.

Accordingly, the Criminal Petition is allowed, setting aside the impugned order dated 22.09.2018 passed in Crl.R.P.No.25 of 2018 on the file of the learned Sessions Judge, Vizianagaram. However, the State is at liberty to proceed in accordance with law, if it is so aggrieved.

As a sequel, interlocutory applications, pending if any in this case, shall stand closed.