Compilation of Judgments

For
Criminal Revision Applications

Mr. R. A. Trivedi
 Scope of Revisional Jurisdiction

(1) AMIT KAPOOR VERSUS RAMESH CHANDER & ANR. - 2012 9 SCC
460
8. Before examining the merits of the present case, we must advert to the
discussion as to the ambit and scope of the power which the courts
including the High Court can exercise under Section 397 and Section 482
of the Code. Section 397 of the Code vests the court with the power to call
for and examine the records of an inferior court for the purposes of
satisfying itself as to the legality and regularity of any proceedings or order
made in a case. The object of this provision is to set right a patent defect or
an error of jurisdiction or law. There has to be a well- founded error and it
may not be appropriate for the court to scrutinize the orders, which upon
the face of it bears a token of careful consideration and appear to be in
accordance with law. If one looks into the various judgments of this Court, it
emerges that the revisional jurisdiction can be invoked where the decisions
under challenge are grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no evidence, material
evidence is ignored or judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own merits.

9. Another well-accepted norm is that the revisional jurisdiction of the

higher court is a very limited one and cannot be exercised in a routine
manner. One of the inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to whether the charge has
been framed properly and in accordance with law in a given case, it may be
reluctant to interfere in exercise of its revisional jurisdiction unless the case
substantially falls within the categories aforestated. Even framing of charge
is a much advanced stage in the proceedings under the Cr.P.C. Right from
the case of State of West Bengal & Ors. v. Swapan Kumar Guha & Ors.
[(1982) 1 SCC 561], which was reiterated with approval in the case of State
of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp. (1) SCC 335], the
courts have stated the principle that if the FIR does not disclose the
commission of a cognizable offence, the Court would be justified in
quashing the investigation on the basis of the information as laid or
received. It is further stated that the legal position appears to be that if an
offence is disclosed, the court will not normally interfere with an
investigation into the case and will permit investigation into the offence
alleged to have been committed; if, however, the materials do not disclose
an offence, no investigation should normally be permitted. Whether an

1
offence has been disclosed or not, must necessarily depend on the facts
and circumstances of each case. If on consideration of the relevant
materials, the Court is satisfied that an offence is disclosed, it will normally
not interfere with the investigation into the offence and will generally allow
the investigation into the offence to be completed in order to collect
materials for proving the offence. In Bhajan Lal’s case (supra), the Court
also stated that though it may not be possible to lay down any precise,
clearly defined, sufficiently channelized and inflexible guidelines or rigid
formulae or to give an exhaustive list of myriad kinds of cases wherein
power under Section 482 of the Code for quashing of an FIR should be
exercised, there are circumstances where the Court may be justified in
exercising such jurisdiction. These are, where the FIR does not prima facie
constitute any offence, does not disclose a cognizable offence justifying
investigation by the police; where the allegations are so absurd and
inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding against
the accused; where there is an expressed legal bar engrafted in any of the
provisions of the Code; and where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal grudge. Despite
stating these grounds, the Court unambiguously uttered a note of caution to
the effect that power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too, in the rarest of rare
cases; the Court also warned that the Court would not be justified in
embarking upon an enquiry as to the reliability or genuineness or otherwise
of the allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary jurisdiction on
the Court to act according to its whims or caprice.

12. The jurisdiction of the Court under Section 397 can be exercised so as
to examine the correctness, legality or proprietary of an order passed by
the trial court or the inferior court, as the case may be. Though the section
does not specifically use the expression ‘prevent abuse of process of any
court or otherwise to secure the ends of justice’, the jurisdiction under
Section 397 is a very limited one. The legality, proprietary or correctness of
an order passed by a court is the very foundation of exercise of jurisdiction
under Section 397 but ultimately it also requires justice to be done. The
jurisdiction could be exercised where there is palpable error, non-
compliance with the provisions of law, the decision is completely erroneous
or where the judicial discretion is exercised arbitrarily. On the other hand,
Section 482 is based upon the maxim quando lex liquid alicuiconcedit,
conceder videtur id quo res ipsa esse non protest, i.e., when the law gives
anything to anyone, it also gives all those things without which the thing

2
 itself would be unavoidable. The Section confers very wide power on the
Court to do justice and to ensure that the process of the Court is not
permitted to be abused.

13. It may be somewhat necessary to have a comparative examination of

the powers exercisable by the Court under these two provisions. There may
be some overlapping between these two powers because both are aimed
at securing the ends of justice and both have an element of discretion. But,
at the same time, inherent power under Section 482 of the Code being an
extraordinary and residuary power, it is inapplicable in regard to matters
which are specifically provided for under other provisions of the Code. To
put it simply, normally the court may not invoke its power under Section 482
of the Code where a party could have availed of the remedy available
under Section 397 of the Code itself. The inherent powers under Section
482 of the Code are of a wide magnitude and are not as limited as the
power under Section 397. Section 482 can be invoked where the order in
question is neither an interlocutory order within the meaning of Section
397(2) nor a final order in the strict sense. Reference in this regard can be
made to Raj Kapoor & Ors. v. State of Punjab & Ors. [AIR 1980 SC 258 :
(1980) 1 SCC 43]}. In this very case, this Court has observed that inherent
power under Section 482 may not be exercised if the bar under Sections
397(2) and 397(3) applies, except in extraordinary situations, to prevent
abuse of the process of the Court. This itself shows the fine distinction
between the powers exercisable by the Court under these two provisions.
In this very case, the Court also considered as to whether the inherent
powers of the High Court under Section 482 stand repelled when the
revisional power under Section 397 overlaps. Rejecting the argument, the
Court said that the opening words of Section 482 contradict this contention
because nothing in the Code, not even Section 397, can affect the
amplitude of the inherent powers preserved in so many terms by the
language of Section 482. There is no total ban on the exercise of inherent
powers where abuse of the process of the Court or any other extraordinary
situation invites the court’s jurisdiction. The limitation is self-restraint,
nothing more. The distinction between a final and interlocutory order is well
known in law. The orders which will be free from the bar of Section 397(2)
would be the orders which are not purely interlocutory but, at the same
time, are less than a final disposal. They should be the orders which do
determine some right and still are not finally rendering the Court functus
officio of the lis. The provisions of Section 482 are pervasive. It should not
subvert legal interdicts written into the same Code but, however, inherent
powers of the Court unquestionably have to be read and construed as free
of restriction.
(2) Hathaji Hemchandji Thakor Versus Amratji Rupsinhji Thakor-2008 (3)
GLH(UJ) 8

3
 12 It is settled proposition that an order of acquittal passed by a trial Court
should be sparingly interfered with by the High Court in its revisional
jurisdiction. The interference with the order passed by the trial Court is
limited only to exceptional cases when it is found that the order under
revision suffers from glaring illegality or has caused miscarriage of justice
or when it is found that the trial Court has overlooked the material evidence.
Therefore, ordinarily, it would not be appropriate for the High Court to
reappreciate the evidence and come to its own conclusion on the same
when the evidence has already been appreciated by the trial Court unless
glaring feature is brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice. Therefore, the High
Court in its revisional power does not ordinarily interfere with judgment of
acquittal passed by the trial Court unless there has been manifest error of
law or procedure. In the case on hand, the petitioner has failed to point out
that there is glaring illegality or that the trial Court has overlooked the
material evidence. It is also not indicated that there is manifest error of law
or procedure.
(3) Bhikhabhai Ranchhodbhai Makwana Versus State Of Gujarat-2001
CrLJ 4457
Again it is well settled that reappreciation of evidence in Criminal Revision
is ordinarily not permitted unless very strong case is made out and it is
shown that findings recorded are perverse i.e. totally against the evidence
on record. That re-appreciation of evidence cannot be done simply because
the Court thinks that the lower court has taken an erroneous view in
recording a finding. This can be gathered from the case of Ramaben Patel
V/s. State of Gujarat, reported in 1992 (2) GLR 1530. Even in the case of
Kantilal Chavda V/s. Nanubhai Chavda, reported in 1992 (2) GLR 1520, it
has been observed at length that revisional powers are not appellate
powers. Such powers can be exercised for giving justice and not for
injustice, even if the order sought to be revised is not in confirmity with law.

Other landmark judgments for scope of Criminal Revision Application

Revisional powers cannot be exercised as a second appellate court. Minute

and in-depth re- examination of evidence is not permissible- State of
Maharastra V/S Jagmohan Singh Kuldip Singh Anand – (2004) 7 SCC 659
Mere omission by a trial court to put any question to an accused even if it is of a
vital nature held cannot be ground for appellate or revisional court to set aside
the conviction and sentence as an inevitable consequence –State of Punjab
V/S Naib Din (2001) 8 SCC 578
In our opinion, the High Court was clearly in error in dismissing the reversion
petition filed by the petitioner. The learned Magistrate discharged the accused

4
relying upon a decision of this Court in Raja 1 dass case: (AIR 1975 sc 189) but
when the matter was before the High Court the decision in Rajaldas case was
clearly overruled and the decision in Alaserry Mohammeds case (AIR 1978 sc
933) held the field and if the law laid down in Alaserry Mohammeds Case was
applied, the order of discharge passed by the learned Magistrate was utterly
unsustainable. The High Court itself was aware of this fact and, therefore, the
High Court ought to have set aside the order of discharge and directed further
trial.

It, however, appears that the respondents contended that the revision
petition was barred by limitation. Even this contention is founded on a very
technical ground that even though the revision petition was filed very much in
time the requisite power of attorney of the learned advocate on behalf of the
petition was not legally complete and when it was re-submitted the limitation
had expired. Without going into the nicety of this too technical contention, we
may notice that Section 397 of the Code of Criminal Procedure enables the
High Court to exercise power of revision suo motu and when the attention of
the High Court was drawn to a clear illegality the High Court could not have
rejected the petition as time barred thereby perpetuating the illegality and
miscarriage of justice. The question whether a discharge order is interlocutory
or otherwise need not detain us because it is settled by a decision of this Court
that the discharge order terminates the proceeding and, therefore, it is revisable
under Section 397 (1), Cr. P. C. and Section 397 (1) in terms confers power of
suo motu revision on the High Court, and if the High Court exercises suo motu
revision power the same cannot be denied on the ground that there is some
limitation prescribed for the exercise of the power because none such is
prescribed. If in such a situation the suo motu power is not exercised what a
glaring illegality goes unnoticed can be demonstrably established by this case
itself. We, however, do not propose to say a single word on the merits of the
cause because there should not be even a whisper of prejudice to the accused
who in view of this judgment would have to face the trial before the learned
Magistrate [Municipal Corpn of Delhi V/S Girdharlal Sapru (1981) 2 SCC
758]-

[Most important]- Revision application can be preferred directly before High

Court against the order of CJM, instead of first moving Sessions court. There is
no bar for High Court to entertain such revision petition. Held on facts high
court erred in criticizing CBI for filing petition under S.397 directly before it
bypassing sessions Court [ CBI V/S State of Gujarat- AIR 2007 SC 2522]
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Dismissing the Revision application without assigning reasons is not justified [
Iqbal Bano V/S State of U.P. (2007) 6 SCC 785]

[Raj Kapoor V/S State- AIR 1980 SC 258]-When the order, in original, is
before you, to dismiss the petition for non-production of a copy of it is to bring
the judicial process into pejoration, and, if a copy were so sacred that the
original were no substitute for it some time could have been granted for its
production, which was not done. In law, as in life, a short cut may prove a
wrong cut. I disinter the cassation proceeding and direct it to be disposed of de
novo by the High Court. The content of the power, so far as the present
situation is concerned, is the same, be it under Section 397 or S. 482 of the
CodeBoth parties must be heard in Revision proceedings- [Makkapati
Nagaswara Sastri V/S S.S. Satyanarayan – AIR 1981 SC 1156]

High court suo motu in revisional jurisdiction can enhance the sentence in an
appeal against the conviction if no appeal is filed by the state against he
sentence – [Saheb Singh V/S State of Haryana- (1990) 2 SCC 385]

The other findings of the Magistrate on the disputed question of fact were
recorded after a full consideration of the evidence and should have been left
undisturbed in revision. [ Bakulabai V/S Gangaram (1988) 1 SCC 537]

If order of further investigation passed under section 173(8) appears to be

unwarranted revision becomes maintainable –[Kishan Lal V/S Dharmendra
Bafna- (2009) 7 SCC 685]

In the present case also, the High Court has not found any procedural illegality
or manifest error of law in the order passed by the sessions judge. The High
Court has merely re-appreciated the evidence and arrived at the conclusion
that there was no reason not to rely upon the injured witnesses PW1, PW2 and
PW4 and that when there is an attack by a large group of people armed with
lethal weapons and when they belong to an organised group like RSS, the
people of the locality may be terrorised and might be unwilling to testify even if
they had actually seen the occurrence. The High Court observed that the
victims in the case no doubt belong to the rival party, but that does not render
their evidence, interested or partisan and thereafter set aside the acquittal order
passed in appeal by the sessions judge and remitted it for fresh hearing and
disposal by observing that court would decide the matter unhampered by any of
the observations contained in the order. From the findings recorded by the High
6
 Court, it is difficult to hold that there was any manifest error of law or procedure.
It is nobody s case that the appellate court has shut out or has overlooked the
evidence which clinches the issue. The High Court has only re-appreciated the
entire evidence and has taken contrary view for setting aside the acquittal
order. This, in our view, is not permissible while exercising the revisional
jurisdiction at the instance of de facto complainant against the order of
acquittal.-[Thankappan Nadar & Ors Versus Gopala Krishnan & Anr.-(2002)
9 SCC 393]

9. The High Court was exercising the revisional jurisdiction at the instance of a
private complainant and, therefore, it is necessary to notice the principles on
which such revisional jurisdiction can be exercised. Sub-Section (3) of Section
401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal
into one of conviction. Without making the categories exhaustive, revisional
jurisdiction can be exercised by the High Court at the instance of private
complainant

(1) where the trial court has wrongly shut out evidence which the prosecution
wished to produce,
(2) where the admissible evidence is wrongly brushed aside as inadmissible, (3)
where the trial court has no jurisdiction to try the case and has still acquitted the
accused,
(4) where the material evidence has been overlooked either by the trial court or
the appellate court or the order is passed by considering irrelevant evidence and
(5) where the acquittal is based on the compounding of the offence which is
invalid under the law.
By now, it is well settled that the revisional jurisdiction, when invoked by a private
complainant against an order of acquittal, cannot be exercised lightly and that it
can be exercised only in exceptional cases where the interest of public justice
require interference for correction of manifest illegality or the prevention of gross
miscarriage of justice. In these cases, or cases of similar nature, retrial or
rehearing of the appeal may be ordered. [Sheetala Prasad V/S Sri Kant (2010) 2
SCC 190]
Ordinarily the Criminal Revision application can not be dismissed for want of
prosecution [Satin Chanra Pegu V/S State of Assam – AIR 2007 SC 457]
When session judge is an appellate court revision lies to the High court only –
[Asghar Khan V/S State of UP AIR 1981 SC 1697]

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 Criminal Revision application against the discharge is maintainable [ Haryana
Land Reclamation and Development Copn Ltd V/S State of Haryana
(1990) 3 SCC 588]
Bar of section 397(3) not applicable to state and hence state is not prohibited
from availing revisional powers under section 401 read with section 397-[
Krishnan V/S Krishnaveni- (1997) 4 SCC 241]

Clarification of Final, Intermediate and Interlocutory order

Note:- As per section 397 (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.

(1) Girish Kumar Suneja V/S CBI- (2017) 14 SCC 809

12. The Constitution Bench of this Court considered the scope of the
revision jurisdiction of the High Court under Section 439 of the
CriminalProcedure Code, 1898 (the old Code) in Pranab Kumar Mitra v.
State of West Bengal, 1959 Supp. (1) SCR 63. The consideration was in
the context of an application for substitution filed by the son of a convict
who had challenged his conviction and sentence, but had expired during
the pendency of the revision petition. The Constitution Bench held that the
revision jurisdiction of the High Court is a discretionary jurisdiction to be
exercised in aid of justice. What is significant is that a litigant does not
have a right to have a revisable order set aside. Whether the High Court
chooses to exercise its revision jurisdiction in a particular case or not
depends upon the facts of that case -hence, the reference to the revision
jurisdiction as a discretionary jurisdiction. The revision jurisdiction of the
High Court only conserves the power of the High Court to ensure that
justice is done in accordance with the recognized rules of criminal
jurisprudence and that criminal courts subordinate to the High Court do not
exceed their jurisdiction or abuse the powers vested in them by the
Criminal Procedure Code (the old Code). In view of these conclusions of
the Constitution Bench, there is no doubt that the appellants do not have
any right to the revision of a revisable order. It was held as follows:

“In our opinion, in the absence of statutory provisions, in terms

applying to an application in revision, as there are those in Section 431 in
respect of criminal appeals, the High Court has the power to pass such
orders as to it may seem fit and proper, in exercise of its revisional
jurisdiction vested in it by Section 439 of the Code.

Indeed, it is a discretionary power which has to be exercised in aid of

8
justice. Whether or not the High Court will exercise its revisional jurisdiction
in a given case, must depend upon the facts and circumstances of that
case. The revisional powers of the High Court vested in it by Section 439
of the Code, read with Section 435, do not create any right in the litigant,
but only conserve the power of the High Court to see that justice is done in
accordance with the recognized rules of criminal jurisprudence, and that
subordinate Criminal Courts do not exceed their jurisdiction, or abuse their
powers vested in them by the Code.”

16. While the text of sub-section (1) of Section 397 of the Cr.P.C. appears
to confer very wide powers on the court in the exercise of its revision
jurisdiction, this power is equally severely curtailed by sub-section
(2)thereof. There is a complete prohibition in a court exercising its revision
jurisdiction in respect of interlocutory orders. Therefore, what is the nature
of orders in respect of which a court can exercise its revision jurisdiction?

17. There are three categories of orders that a court can pass – final,
intermediate and interlocutory. There is no doubt that in respect of a final
order, a court can exercise its revision jurisdiction – that is in respect of a
final order of acquittal or conviction. There is equally no doubt that in
respect of an interlocutory order, the court cannot exercise its revision
jurisdiction. As far as an intermediate order is concerned, the court can
exercise its revision jurisdiction since it is not an interlocutory order.

21. The concept of an intermediate order was further elucidated in Madhu

Limaye v. State of Maharashtra, (1977) 4 scc 551 by contradistinguishing a
final order and an interlocutory order. This decision lays down the principle
that an 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. Two such intermediate orders immediately come
to mind – an order taking cognizance of an offence and summoning an
accused and an order for framing charges. Prima facie these orders are
interlocutory in nature, but when an order taking cognizance and
summoning an accused is reversed, it has the effect of terminating the
proceedings against that person resulting in a final order in his or her
favour. Similarly, an order for framing of charges if reversed has the effect
of discharging the accused person and resulting in a final order in his or
her favour. Therefore, an intermediate order is one which if passed in a
certain way, the proceedings would terminate but if passed in another way,
the proceedings would continue.

23. We may note that in different cases, different expressions are used for
the same category of orders – sometimes it is called an intermediate order,
sometimes a quasi-final order and sometimes it is called an order that is a

9
matter of moment. Our preference is for the expression ‘intermediate order’
since that brings out the nature of the order more explicitly

27. Our conclusion on this subject is that while the appellants might have
an entitlement (not a right) to file a revision petition in the High Court but
that entitlement can be taken away and in any event, the High Court is
under no obligation to entertain a revision petition – such a petition can be
rejected at the threshold. If the High Court is inclined to accept the revision
petition it can do so only against a final order or an intermediate order,
namely, an order which if set aside would result in the culmination of the
proceedings. As we see it, there appear to be only two such eventualities
of a revisable order and in any case only one such eventuality is before us.
Consequently the result of paragraph 10 of the order passed by this Court
is that the entitlement of the appellants to file a revision petition in the High
Court is taken away and thereby the High Court is deprived of exercising
its extraordinary discretionary power available under Section 397 of the
Cr.P.C.

28. However, this does not mean that the appellants have no remedy
available to them -paragraph 10 of the order does not prohibit the
appellants from approaching this Court under Article 136 of the
Constitution. Therefore all that has happened is that the forum for
ventilating the grievance of the appellants has shifted from the High Court
to this Court. It was submitted by one of the learned counsel that this is not
good enough for the appellants since this Court is not obliged to give
reasons while dismissing such a petition unlike the High Court which would
necessarily have to give reasons if it rejected a revision petition. In our
opinion, the mere fact that this Court could dismiss the petition filed by the
appellants under Article 136 of the Constitution without giving reasons
does not necessarily lead to the conclusion that reasons will not be given
or that some equitable order will not be passed. The submission of learned
counsel has no basis and is only a presumption of what this Court might
do. We cannot accept a submission that has its foundation on a
hypothesis.

30. What then is the utility of Section 482 of the Cr.P.C.? This was
considered and explained in Madhu Limaye which noticed the prohibition
in Section 397(2) of the Cr.P.C. and at the same time the expansive text of
Section 482 of the Cr.P.C. and posed the question: In such a situation,
what is the harmonious way out? This Court then proceeded to answer the
question in the following manner:

“In such a situation, what is the harmonious way out? In our opinion, a
happy solution of this problem would be to say that the bar provided in

10
 sub-section (2) of Section 397 operates only in exercise of the revisional
power of the High Court, meaning thereby that the High Court will have no
power of revision in relation to any interlocutory order. Then in accordance
with one of the other principles enunciated above, the inherent power will
come into play, there being no other provision in the Code for the redress
of the grievance of the aggrieved party. But then, if the order assailed is
purely of an interlocutory character which could be corrected in exercise of
the revisional power of the High Court under the 1898 Code, the High
Court will refuse to exercise its inherent power. But in case the impugned
order clearly brings about a situation which is an abuse of the process of
the Court or for the purpose of securing the ends of justice interference by
the High Court is absolutely necessary, then nothing contained in Section
397(2) can limit or affect the exercise of the inherent power by the High
Court. But such cases would be few and far between. The High Court must
exercise the inherent power very sparingly.”
(2) Parmar Rameshchandra Ganpatray & Ors. Versus State of Gujarat &
Anr. – 2017(3) GLR1825
19-20. There are three types of orders, which ordinarily, the Court of law
has to deal with. First the “final order”, secondly the “intermediate order”,
and thirdly the “interlocutory order”.

21. The legal wrangle began when different Courts gave their
interpretations in the absence of any precise definition of the words
“interlocutory order” occurring in the Code. The same not having been
either illustratively or exhaustively defined, came to be given different
shades on the facts of a case in which the said words were sought to be
interpreted.

22. The expression "interlocutory order" has not been defined either in the
Code or elsewhere. However, its meaning and implications have been
considered by various courts both English and Indian. In para 506,
Halsbury's Laws of England, 26th Volume (Fourth Edition), it is stated
that:-

"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 or right already
given in the final judgment are to be worked out, is termed "interlocutory".

An interlocutory order, even though not conclusive of the main dispute,

may be conclusive as to the subordinate matter with which it deals."

23. Para 504 of the said treatise amplifies the position further stating that:-

11
 "......a judgment or order may be final for one purpose and
interlocutory fox" another, or final as to part and interlocutory as to part. It
is impossible to lay down principles about what is final and what is
interlocutory. It is better to look at the nature of the application and not at
the nature of the order eventually made."

25. The meaning and ambit of the expression "interlocutory order" as used
in Section 397(2) has been considered by the Supreme Court in several
decisions. In Smt. Parmeshwari Devi v. The State, AIR 1977 SC 403 :
1977 CrLJ 245, the petitioner Smt. Parmeshwari Devi had in response
to an order under Section 94 of the old Code filed a reply expressing her
inability to produce the documents stating the circumstances pertaining
thereto. She was not a party to the trial but even then the Magistrate
issued order on 8th August, 1974 i.e. after coming into force of the Code,
directing her to attend the Court so as to enable it to put her a few
questions for satisfying itself regarding the whereabouts of the documents.
The said order was challenged in revision invoking the bar of Section
397(2) of the Code. The Supreme Court observed :-

"The Code does not define an interlocutory order, but it obviously is an

intermediate order, made during the preliminary stages of an enquiry or
trial. The purpose of subsection (2) of Section 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 it does 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." (Emphasis supplied)
26. The Supreme Court also adverted to the following observations
appearing in its earlier decision in Mohan Lal Magan Lal Thacker v. State
of Gujarat AIR 1968 SC 733 : 1968 CrLJ 876 :-

"An interlocutory order, though not conclusive of the main dispute may
be conclusive as to the subordinate matter with which it deals."

It then said :

"It may thus be conclusive with reference to the stage at which it is

made, and it may also be conclusive as to a person, who is not a party to
the enquiry or trial, against whom it is directed."

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27. In Amar Nath vs. State of Haryana, AIR 1977 SC 2185 : 1977 CrLJ
1891, the Supreme Court was dealing with an order summoning the
appellants in a complaint case, the appellants having been earlier
exonerated by the police in their report under S. 173 of the Code. A
question arose whether the order of summoning was an interlocutory order
within the meaning of S. 397(2). The Supreme Court observed :-

"Decided cases have laid down that interlocutory orders to be

appealable must be those which decide the rights and liabilities of the
parties concerning a particular aspect. 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 any 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 rights of the accused, or decides certain rights of
the parties cannot be said to be an interlocutory 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 the 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.”

28. Again the very same question cropped up for consideration before the
Supreme Court in Madhu Limaye vs. State of Maharashtra, AIR 1978
SC 47 : 1978 CrLJ 165. On an examination of several decisions both of
Indian and English Courts including the decision of the Federal Court in S.
Kuppuswami Rao vs. The King, AIR 1949 FC 1 : 1948-49 CrLJ 625, the
Supreme Court said :

"But in our judgment 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 it will
render almost nugatory the revisional power of the Sessions Court or the
High Court conferred on it by S. 397(1)........In such a situation it appears
to us that the real intention of the legislature was not to equate the
expression "interlocutory order" as invariably being converse of the words
"final order". There may be an order passed during the course of a
proceeding which may not be final in the sense noticed in Kuppuswami's
case, AIR 1949 FC 1 : 194849 CrLJ 625 (supra), but, yet it may not be an

13
interlocutory order pure or simple. Some kinds of order may fall in between
the two. By a rule of harmonious construction, we think that the bar in
subsection (2) of S. 397 is not meant to be attracted to such kinds of
intermediate orders. They may not be final orders for the purposes of Art.
134 of the Constitution yet it would not be correct to characterise them as
merely interlocutory orders within the meaning of S. 397(2)."
29. The Supreme Court concluded by saying :-

"We may, however, indicate that the type of order with which we are
concerned in this case, even though it may not be final in one sense, is
surely not interlocutory so as to attract the bar of subsection (2) of Section
397. In our opinion it must be taken to be an order of the type falling in the
middle course."

30. In the said case the Sessions Court had vide the impugned order
rejected the application of the accused-petitioner challenging the
jurisdiction of the Court to proceed with the trial on various grounds, for
instance, want of sanction for prosecution by the competent authority. It
was in this context that the Supreme Court applying the test, "If the order in
question is reversed would the action have to go on?" concluded that an
order rejecting the plea of the accused on a point which when accepted will
conclude the particular proceeding will surely be not an interlocutory order
within the meaning of Section 397(2).

31. Still later the Supreme Court explained the nature and scope of an
interlocutory order in V.C. Shukla v. State, AIR 1980 SC 962 : 1980 CrLJ
690. While reaffirming its earlier decision in Amar Nath, 1977 CrLJ 1891
(SC) (supra) and expressing its agreement with the exposition of law by
the learned Judges in Madhu Limaye, 1978 CrLJ 165 (SC) (supra), S.
Murtaza Fazal Ali, J. who spoke for the majority, observed :-

"We might reiterate here even at the risk of repetition that the term
"interlocutory order" used in the Code of Criminal Procedure has to be
given a very liberal construction in favour of the accused in order to ensure
complete fairness of the trial because the bar contained in S. 397(2) of the
Code would apply to a variety of cases coming up to the courts not only
being offences under the Penal Code but under numerous Acts. If,
therefore, the right of revision was to be barred, the provision containing
the bar must be confined within the four corners of the spirit and the letter
of the law. In other words, the revisional power of the High Court or the
Sessions Judge could be attracted if the order was not purely interlocutory
but intermediate or quasi final."

32. His Lordship summed up the legal position saying that the essential

14
attribute of an interlocutory order is that it merely decides some point or
matter essential to the progress of the suit or collateral to the issues
sought but not a final decision or judgment on the matter in issue.

[Most important] 33. Bearing in mind the guidelines enunciated in

the ratio of various judicial pronouncements, the scheme of the Code
in that behalf, the object for enacting or incorporating the said
provision and the basic concept of the term in question, the following
propositions would logically follow :-

(1) That the term "interlocutory order" has been used in a

restricted sense and not in a broad or realistic sense.

(2) That it merely denotes an order of purely interim or temporary

nature. The emphasis in this category is on the word "purely", which
would again highlight the concept that the nature of the order must
be pure and simple, temporary or interim in character and ostensibly
deceptive appearance of a temporary character should not be
confused with the real and outright temporary nature.

(3) Such orders pertaining to some matters in the proceeding

which merely and purely assume the character of stepsinaid of the
proceeding can be embraced by the said terminology, which again
affords a pointer about the nature and categories of the orders that re
purely temporary or interim without actually affecting or even
touching substantially any right or material aspect of the proceeding.

(4) Though a stamp of finality to the proceeding or termination of

the proceeding may be quite a relevant and important consideration,
yet it is not a sole criterion of the test in that behalf.

(5) So also, the potential capacity to terminate proceeding or to

give it a label of finality is also not the only and conclusive criterion
though it by itself is a relevant feature.

(6) Therefore, the fact that the main proceeding is kept alive that
does not ipso facto give a stamp to several such orders as
"interlocutory order".

(7) Consequently it is not permissible to equate the expression

"interlocutory order" as invariably being the converse of the term
"final order".

(8) An order of moment would obviously be lifted out of the

15
 sweep of the said terminology.

(9) Irrespective of the order bearing stamp of finality, there may

be an intervening stage which can be called as 'intermediate stage' at
which an order may be passed which in turn may be called as
'intermediate order', which neither gives the finality to the proceeding
nor is purely interim or temporary and as such is not an interlocutory
order, but would fall in between and in certain cases such order can
be said to be not interlocutory.

(10) An order which (a) decides; or (b) even touches the

important rights or liabilities of the parties; cannot be said to be
interlocutory.

(11) An order which (a) substantially affects the rights of the

parties; or (b) decides certain rights of the parties : cannot be termed
as 'interlocutory'.

(12) So also, an order which (a) adjudicates; or (b) even affects (i)
either the rights of the parties : (ii) even any particular aspect of the
trial or the proceeding cannot be also termed as 'interlocutory order'.

Amar Nath and others v. State of Haryana and others - AIR 1977 SUPREME
COURT 2185
The term "interlocutory order" in S. 397 (2) has been used in a restricted
sense and not in any 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 interlocutory 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. Thus, for instance, orders summoning
witnesses, adjourning cases, passing orders for bail, calling for reports and
such other steps in aid of the pending proceeding, may no doubt amount to
interlocutory orders against which no revision would lie under Section 397
(2). 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. Case law referred to.

The F. I. R. mentioned a number of accused persons including the

appellants as having participated in the occurrence which resulted in the
death of the deceased. The police, after holding investigations, submitted a

16
charge-sheet against the other accused persons except the appellants
against whom the police opined that no case at all was made out. The
Judicial Magistrate, who after perusing the report set the appellants at
liberty after having accepted the report. A revision petition filed by the
complainant before the Sessions Judge against the order of the Magistrate
releasing the appellants was dismissed. The informant then filed a regular
complaint before the Judicial Magistrate against all the accused including
the appellants which was also dismissed on merits. The Sessions Judge in
revision, however, set aside the order dismissing the complaint and
ordered further inquiry. The Magistrate on receiving the order of the
Sessions Judge summoned the appellants straightway which meant that
the appellants were to be put on trial. The petition under S. 482 and S. 397
against the order of the Magistrate was dismissed by the High Court on the
ground that the order summoning the appellants was an interlocutory one.

Held, that the order of the Magistrate summoning the appellants was one
which was a matter of moment. If the appellants were not summoned, then
they could not have faced the trial at all, but by compelling the appellants
to face a trial without proper application of mind could not be held to be an
interlocutory matter but one which decided a serious question as to the
rights of the appellants to be put on trial. That being the position, a revision
against the order was fully competent under S. 397 (1) or under S. 482,
because the scope of both these sections in a matter of this kind is more or
less the same.

2009 1 OLR(SC) 915; 2009 Sethuraman Versus Rajamanickam

Criminal Appeal No. 486-487 of 2009
[Arising out of SLP (Crl.) No. 2688-89 of 2005]
Decided on 18th March, 2009.
4. Secondly, what was not realized was that the order passed by the Trial
Court refusing to call the documents and rejecting the application under
Section 311 Cr.P.C., were interlocutory orders and as such, the revision
against those orders was clearly barred under Section 397(2) Cr.P.C. The
Trial Court, in its common order, had clearly mentioned that the cheque
was admittedly signed by the respondent/accused and the only defence
that was raised, was that his signed cheques were lost and that the
appellant/complainant had falsely used one such cheque. The Trial Court
also recorded a finding that the documents were not necessary. This order
did not, in any manner, decide anything finally.

[most important]

Therefore, both the orders, i.e., one on the application under Section
91 Cr.P.C. for production of documents and other on the application

17
 under Section 311 Cr.P.C. for recalling the witness, were the orders of
interlocutory nature, in which case, under Section 397(2), revision
was clearly not maintainable. Under such circumstances, the learned
Judge could not have interfered in his revisional jurisdiction. The impugned
judgment is clearly incorrect in law and would have to be set aside. It is
accordingly set aside. The appeals are allowed.
Prabhu Chawla Versus State of Rajasthan & Anr.- AIR 2016 SC 4245
6. In our considered view any attempt to explain the law further as regards
the issue relating to inherent power of High Court under Section 482
Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins
with a non-obstante clause to state: "Nothing in this Code shall be deemed
to limit or affect the inherent powers of the High Court to make such orders
as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends
of justice." A fortiori, there can be no total ban on the exercise of such
wholesome jurisdiction where, in the words of Krishna Iyer, J. "abuse of the
process of the Court or other extraordinary situation excites the court's
jurisdiction. The limitation is self-restraint, nothing more." We venture to
add a further reason in support. Since Section 397 Cr.P.C. is attracted
against all orders other than interlocutory, a contrary view would limit the
availability of inherent powers under Section 482 Cr.P.C. only to petty
interlocutory orders! A situation wholly unwarranted and undesirable.
Mohit alias Sonu and Another VersuS State of U.P. and Another -AIR 2013
SC 2248
20. [ MOST IMPORTANT ]In the light of the ratio laid down by this Court
referred to hereinabove, we are of the considered opinion that the order
passed by the trial court refusing to issue summons on the
application filed by the complainant under Section 319 of Cr.P.C.
cannot be held to be an interlocutory order within the meaning of
sub-section (2) of Section 397 of Cr.P.C. Admittedly, in the instant case,
before the trial court the complainant’s application under Section 319 of
Cr.P.C. was rejected for the second time holding that there was no
sufficient evidence against the appellants to proceed against them by
issuing summons. The said order passed by the trial court decides the
rights and liabilities of the appellants in respect of their involvement
in the case. As held by this Court in Amar Nath’s case (supra), an
order which substantially affects the rights of the accused or decides
certain rights of the parties cannot be said to be an interlocutory
order so as to bar a revision to the High Court against that order as
contemplated under Section 397(2) of Cr.P.C.

21. In the instant case as noticed above, when the complainant’s

18
 application under Section 319 of Cr.P.C. was rejected for the second time,
he moved the High Court challenging the said order under Section 482 of
Cr.P.C. on the ground that the Sessions Court had not correctly
appreciated the facts of the case and the evidence brought on record. The
complainant wanted the High Court to set aside the order after holding that
the evidence brought on record is sufficient for coming to the conclusion
that the appellants were also involved in the commission of the offence.

22. In our considered opinion, the complainant ought to have challenged

the order before the High Court in revision under Section 397 of Cr.P.C.
and not by invoking inherent jurisdiction of the High Court under Section
482 of Cr.P.C. Maybe, in order to circumvent the provisions contained in
sub-section (2) of Section 397 or Section 401, the complainant moved the
High Court under Section 482 of Cr.P.C. In the event a criminal revision
had been filed against the order of the Sessions Judge passed under
Section 319 of Cr.P.C., the High Court before passing the order would
have given notice and opportunity of hearing to the appellants.

23. So far as the inherent power of the High Court as contained in Section
482 of Cr.P.C. is concerned, the law in this regard is set at rest by this
Court in a catena of decisions. However, we would like to reiterate that
when an order, not interlocutory in nature, can be assailed in the High
Court in revisional jurisdiction, then there should be a bar in invoking the
inherent jurisdiction of the High Court. In other words, inherent power of
the Court can be exercised when there is no remedy provided in the Code
of Criminal Procedure for redressal of the grievance. It is well settled that
inherent power of the court can ordinarily be exercised when there is no
express provision in the Code under which order impugned can be
challenged.
OM KR. DHANKAR VERSUS STATE OF HARYANA & ANR. -2012(11) SCC
252
[MOST IMPORTANT] 10. In view of the above legal position, we hold, as it
must be, that revisional jurisdiction under Section 397 Cr.P.C. was
available to the respondent No. 2 in challenging the order of the Magistrate
directing issuance of summons. The first question is answered against the
appellant accordingly.
REVISION AGAINST THE POLICE CUSTODY REMAND

State Rep. by Inspector of Police and Ors. Versus N.M.T. Joy Immaculate-
AIR 2004 SC 2282

19
 NO REVISIONS LIES AGAINST THE ORDER OF GRANT OF REMAND
ORDER
13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the
detention of an accused in the custody of police. Section 209 Cr.P.C.
confers power upon a Magistrate to remand an accused to custody until
the case has been committed to the Court of Sessions and also until the
conclusion of the trial. Section 309 Cr.P.C. confers power upon a Court to
remand an accused to custody after taking cognizance of an offence or
during commencement of trial when it finds it necessary to adjourn the
enquiry or trial. The order of remand has no bearing on the proceedings of
the trial itself nor it can have any effect on the ultimate decision of the
case. If an order of remand is found to be illegal, it cannot result in
acquittal of the accused or in termination of proceedings. A remand order
cannot affect the progress of the trial or its decision in any manner.
Therefore, applying the test laid down in Madhu Limaye s case (supra), it
cannot be categorised even as an "intermediate order". The order is,
therefore, a pure and simple interlocutory order and in view of the bar
created by sub-section (2) of Section 397 Cr.P.C., a revision against the
said order is not maintainable. The High Court, therefore, erred in
entertaining the revision against the order dated 6.11.2001 of the
Metropolitan Magistrate granting police custody of the accused Joy
Immaculate for one day.
[MOST IMPORTANT]
Kandhal vs State on 4 May, 2012
REFERENCE No. 3 of 2009 IN SPECIAL CRIMINAL APPLICATION NO.1590
of 2009
1. The learned Single Judge of this Court (Her Ladyship Ms. Justice
Harsha N. Devani) while hearing Special Criminal Application No.1590 of
2009, directed against the order dated 01.08.2009 passed by the
Additional Sessions Judge and 2nd Fast Track Court, Rajkot, below
Applications Exhs:12, 14, 15, 18 and 22, preferred by the accused in
Criminal Revision Application No.100 of 2009, framed the following
questions for consideration and opinion of a Division Bench-Larger Bench:-

"(i) Whether an order refusing to grant remand has any bearing on the
proceedings of the trial itself ? Whether an order refusing to grant remand
has any effect on the ultimate decision of the case ?

(ii) Whether an order refusing to grant remand can affect the progress of
the trial or its decision in any manner ?

(iii) Whether an order refusing to grant police remand is an interlocutory

20
order or an intermediate or a final order ?

(iv) Consequently, whether a revision against an order refusing to grant

police remand is maintainable under section 397 CrPC ?"

8. Thus, what can be culled out from the judgment of the Supreme Court in
N. M. T. Joy Immaculate (supra) is that an order granting remand is a pure
and simple interlocutory order as it will not terminate the proceedings. In
other words, if the objection of the accused of grant of remand is upheld
the proceedings so far as remand is concerned would come to an end but
not vice versa. We have noticed that the issue before the Supreme Court
in N. M. T. Joy Immaculate (supra) was very limited as to whether a
revision application at the instance of an accused is maintainable against
an order granting police remand. The Apex Court after considering the
land mark decision in the case of Madhu Limaye Vs. State of Maharashtra
reported in AIR 1978 SC 47 and Amar Nath Vs. State of Haryana reported
in 1977 (4) SCC 137, held that an order granting police remand is a
purely interlocutory order and revision against it is not maintainable

10. We are, therefore, of the opinion that an order refusing to grant

police remand is a final order against which Revision Application
under Section 397 read with Section 401 of the Criminal Procedure
Code would be maintainable.

Madhu Limaye VS State Of Maharashtra- AIR 1978 SC 47

17. Before we conclude we may point out an obvious, almost

insurmountable, difficulty in the way of applying literally the test laid down,
in Kuppuswami Raos case (AIR 1949 FC 1) and in holding that an order of
the kind under consideration being not a final order must necessarily be an
interlocutory one. If a complaint is dismissed under S. 203 or under S.
204 (4), or the Court holds the proceeding to be void or discharges
the accused, a revision to the High Court at the instance of the
complainant or the prosecutor would be competent, otherwise it will
make S. 398 of the new Code otiose. Does it stand to reason, then, that an
accused will have no remedy to move the High Court in revision or invoke
its inherent power for the quashing of the criminal proceeding initiated
upon a complaint or otherwise and which is fit to be quashed on the face of
it? The legislature left the power to order further inquiry intact in S. 398. Is
it not then in consonance with the sense of justice to leave intact the
remedy of the accused to move the High Court for setting aside the order
adversely made against him in similar circumstances and to quash the
proceeding? The answer must be given in favour of the just and

21
reasonable view expressed by us above.

18. For the reasons, stated above, we allow this appeal, set aside the
judgment and order of the High Court and remit the case back to it to
dispose of the appellants petition on merits, in the manner it may think fit
and proper to do in accordance with the law and in the light of this
judgment.
Girish Kumar Suneja Versus C.B.I.- 2017 0 AIR(SC) 3620
Revision jurisdiction of high Court is discretionary.

Revision jurisdiction can be exercised in respect of a final order of acquittal

or conviction as also an intermediate order but not an interlocutory order.

In view of prohibition on interference with interlocutory order in revision

jurisdiction u/s 397(2), jurisdiction u/s 482 cannot be invoked to achieve
the same objective.

Filing a revision petition in the High Court in respect of an interlocutory

order, though prohibited, the appellants can approach Supreme Court
under Article 136, Constitution of India.

Power of Supreme Court to dismiss a petition without giving reasons does

not mean that the Court will not give reasons or pass equitable orders.

Power u/s 482 can be exercised in respect of interlocutory order also if it is

abuse of the process of law.

Grouping of all Coal block allocation cases is neither arbitrary nor

legislation by Court.

Shifting of forum from High Court to Supreme Court is not denial,

restriction or constriction of statutory right.

Power under Article 142 can be invoked only when it is not in conflict with
the substantive provisions of any law.

Proceedings could be stayed only and only in case of an error, omission or

irregularity in the sanction for prosecution resulting in failure of justice.

‘Failure of justice’ is much more than miscarriage of justice or a violation of

law or an irregularity in procedure.

V.K Bhatt V/S G Ravi Kishore and others – (2016) 13 SCC 243

22
 [Most Important ]Dismissal of complaint for non appearance of complaint
amounts to acquittal as contemplated under section 256 of CrPC and
hence Revision application under section 397 is not maintainable. Accused
has to prefer acquittal appeal
Harveer Singh and another V/S State of UP & Charanjit Kaur V/S Bikram
Singh and another –(2016) 12 SCC 652
Revision application cannot be dismissed ex parte without assigning
reasons
Vijay Surendrabhai Bhatt Versus State Of Gujarat-CRIMINAL REVISION
APPLICATION No. 423 of 2005 ; *J.Date :- JULY 15, 2005
Order declaring the witness as hostile and permitting the side who calls the
witness to cross examine the said witness is an interlocutory order and no
revision lies against said order

Rajeshbhai Chandubhai Versus State Of Gujarat-2001 (3) GLR 1979

12 In my view, therefore denial of this right of cross-examination to the

accused is not an order passed which is purely interim or temporary in
nature. The learned Sessions Judge has decided the rights and liabilities
of the accused finally and the order of the learned Sessions Judge touch
the important rights and liabilities of the accused and give a final shape to
the orders passed therein at this stage during the course of hearing, in my
view, the order substantially affects the rights and liabilities of the accused,
and therefore, it cannot be called as an interlocutory order. In my view, the
expression "interlocutory order" is a contradiction to what is known as final
order and denotes an order of an interim in nature. In my view, this order of
denial to cross-examination cannot be termed as interim or temporary
nature because it determines the rights of the accused finally at this stage
which cannot be recalled in future. In my view, damage to the accused is
final and complete, and therefore, this order can be termed as final order
and cannot be termed as interlocutory order. Therefore, the present
revision application is maintainable.

K.K.Patel Versus State Of Gujarat-2000 (3) GLH 30

10 Merely because the appellants did not raise the legal points based on
Sec. 161 of the Bombay Police Act before the Metropolitan Magistrate they
are not estopped from canvassing on that additional grounds also before
the Sessions Court in revision as they were challenging therein the very
issuance of process against them. The position may be different if the
Sessions Judge had avoided dealing with the contention based on Sec.
161 (1) of the said Act on the premise that it could be raised before the
Trial Court. But when the Sessions Judge had opted to go into that

23
question and rendered a decision on it on merits it is difficult to concur with
the reasoning of the High Court that the said aspect would not be gone into
by the High Court as the same was not raised before the Trial Court.

11 That apart, the view of the learned Single Judge of the High Court that
no revision was maintainable on account of the bar contained in Sec. 397
(2) of the Code, is clearly erroneous. It is now well-nigh settled that in
deciding whether an order challenged is interlocutory or not as for Sec.
397 (2) of the Code, the sole test is not whether such order was passed
during the interim stage. {vide Amar Nath V/s. State of Haryana [(1977) 4
SCC 137]; Madhu Limaye V/s. State of Maharashtra [(1977) 4 SCC 551];
V. C. Shukla V/s. State through CBI [(1980) 2 SCR 380] and Rajendra
Kumar Sitaram Pande V/s. Uttam [JT 1999 (1) SC 426 = (1999) 3 SCC
134]} The feasible test is whether by upholding the objections raised by a
party, would it result in culminating the proceedings, if so any order passed
on such objections would not be merely interlocutory in nature as
envisaged in Sec. 397 (2) of the Code. In the present case, if the objection
raised by the appellants were upheld by the court the entire prosecution
proceedings would have been terminated. Hence, as per the said
standard, the order was revisable.

12 Therefore, the High Court went wrong in holding that the order
impugned before the Sessions Court was not revisable in view of the bar
contained in Sec. 397 (2) of the Code.

13 Though learned Counsel for the appellants endeavoured to contend

that want of sanction of the Government is a bar under Sec. 197 of the
Code for taking cognizance of the offences, we do not consider it
necessary to delve into that part of the contention in view of our conclusion
regarding Sec. 161 (1) of the Bombay Police Act. The said sub-sec. is
extracted below:

["161. Suits or prosecutions in respect of acts done under colour of duty as

aforesaid - not to be entertained, or to be dismissed if not instituted within
the prescribed period - (1) In any case of alleged offence by the
Commissioner, the Revenue Commissioner, the Commissioner, a
Magistrate, Police Officer or other person, or of a wrong alleged to have
been done by such Commissioner, such Revenue Commissioner,
Commissioner, Magistrate, Police Officer or other person by any act done
under colour or in excess of any such duty or authority as aforesaid or
wherein, it shall appeal to the Court that the offence or wrong if committed
or done was of the character aforesaid, the prosecution or suit shall not be
entertained, or shall be dismissed, if instituted, more than one year after
the date of the act complained of:

24
[Provided that, any such prosecution against a Police Officer may be
entertained by the Court, if instituted with the previous sanction of the
State Government within two years from the date of the offence." ]

14 The sub-sec. imposed a ban on the court from entertaining a

prosecution for an offence falling within the purview of the sub-sec. and
was committed by a police officer, if the prosecution was instituted more
than one year after the date of the act complained of. The only exception
to the said ban is, if the complainant gets sanction from the State
Government to prosecute the police officer the aforesaid period of one
year would get enlarged to two years. Offences falling within the purview of
the sub-sec. relate to those acts done "under the colour or in excess of any
duty or authority as aforesaid". The Sub-section then widens the net a little
further by bringing within its sweep those offences committed through any
acts done which are "of the character aforesaid". The expression
"aforesaid" in the sub-sec. is evidently with reference to what is mentioned
in Secs. 159 and 160 of the same enactment. Those provisions afford an
absolute immunity to a public servant from any penalty or liability to pay
damages in respect of any "act done in good faith" in pursuance of or
intended pursuance of "any duty imposed or any authority conferred on
him by any provision of this Act or any other law for the time being in force
or any rule, order or direction made or given thereunder". Such absolute
immunity is not afforded in respect of any offence or wrong alleged to have
been done by such public servant, if it was done "under colour or in excess
of any such duty or authority as aforesaid". Nonetheless the said statute
has fixed a time limit for initiation of prosecution proceedings in such cases
against the public servant. If prosecution proceedings were not initiated
within such time limit, they cannot be commenced thereafter.

15 A three-Judge Bench of this Court in Virupaxappa Veerappa Kadampur

V/s. State of Mysore [AIR 1963 SC 849] has considered the amplitude of
the expression "under the colour of any duty or authority" as envisaged in
the Sub-section. After making reference to some of the earlier decisions
rendered by the Bombay High Court and after noticing the meaning of the
expression "colour of office" given in Law Lexicons, learned Judges
observed thus:

["Whether or not when the act bears the true colour of the office or duty or
right, the act may be said to be done under colour of that right, office or
duty, it is clear that when the colour is assumed as a cover or a cloak for
something which cannot properly be done in performance of the duty or in
exercise of the right or office, the act is said to be done under colour of the
office or duty or right. It is reasonable to think that the Legislature used the
25
words "under colour" in Sec. 161 (1) to include this sense.... It appears to
us that the words 'under colour of duty' have been used in Sec. 161 (1) to
include acts done under the cloak of duty, even though not by virtue of the
duty. When he (the Police Officer) prepares a false Panchanama or a false
report he is clearly using the existence of his legal duty as a cloak for his
corrupt action or to use the words in Stroud's Dictionary 'as a veil to his
falsehood'. The acts thus done in dereliction of this duty must be held to
have been done under colour of the duty."]

16 In this case, there is no scope for contending that the offences alleged
would not fall within the purview of "acts done under the colour or in
excess of duty or authority" of such police officer. Even the very reading of
the ingredients for the offences alleged would show that such offences
could not be committed without being in the cloak of a public servant nor
could they be committed unless the public servant was at least under the
colour of his office. Sec. 166 of the Indian Penal Code which is one of the
offences alleged against the complainants is extracted below:

["166. Public servant disobeying law, with intent to cause injury to any
person - Whoever, being a public servant, knowingly disobeys any
direction of the law as to the way in which he is to conduct himself as such
public servant, intending to cause, or knowing it to be likely that he will, by
such disobedience, cause injury to any person, shall be punished with
simple imprisonment for a term which may extend to one year, or with fine,
or with both."]

17 The indispensable ingredient of the said offence is that the offender

should have done the act "being a public servant". The next ingredient
close to its heels is that such public servant has acted in disobedience of
any legal direction concerning the way in which he should have conducted
as such public servant. For the offences under Secs. 167 and 219 of IPC
the pivotal ingredient is the same as for the offence under Sec. 166 of IPC.
The remaining offences alleged in the complaint, in the light of the
averments made therein, are ancillary offences to the above and all the
offences are parts of the same transaction. They could not have been
committed without there being at least the colour of the office or authority
which appellants held.

18 Shri S. K. Dholakia, learned senior Counsel for the State of Guj. invited
our attention to the decisions of this Court in State of Maharashtra V/s.
Narhar Rao [AIR 1966 SC 1783] and State of Maharashtra V/s. Ram and
Ors. [AIR 1966 SC 1786]. Both the decisions dealt with the scope of Sec.
161 of the Bombay Police Act. In the former, a Police Head Constable was
tried for the offence under Sec. 5(2) of the Prevention of Corruption Act,
1947, for accepting bribe in the course of investigating a criminal case.
26
Though the Trial Court convicted him of the offence, the High Court
acquitted him in appeal on the ground that prosecution was barred under
Sec. 161 (1) of the Act. A three-Judge Bench of this Court has held that
the act of accepting bribe is not an act done in the colour of his office. The
following observations in that decision are apposite in the context.

["In this connection, it is important to remember that an act is not done

under colour of an office merely because the point of time at which it is
done coincides with the point of time the accused is invested with the
powers or duty of the office. To be able to say that an act was done under
the colour of an office one must discover a reasonable connection between
the act alleged and the duty or authority imposed on the accused by the
Bombay Police Act or other statutory enactment. Unless there is a
reasonable connection between the act complained of and the powers and
duties of the office, it is difficult to say that the act was done by the
accused officer under the colour of his office."]

19 In the latter decision the same three-Judge Bench considered the case
of two Police Head Constables who were prosecuted for certain offences
and they were convicted under Sec. 330 of the IPC. There also the High
Court took the view, in the appeal filed by them, that prosecution was
barred under Sec. 161 (1) of the Act. On the facts of that case learned
Judges held that the offences was not relating to an act done in the colour
of office. The said decision confined to the fact situation which arose in that
case.

20 We may observe that neither of the above decisions has changed the
legal position laid down by the three-Judge Bench in Virupaxappa
Veerappa Kadampur (supra).

21 In the present case, it is the admitted fact that the complaint was filed
only long after the period indicated in Sec. 161 of the Act was over, either
with or without sanction from the State Government. Therefore, the
complaint is irretrievably barred under the said provision.

22 In view of this conclusion of ours it is unnecessary for us to consider the

next question whether sanction under Sec. 397 (197?) of the Code is
necessary to take cognizance of the offences alleged.

23 We, therefore, allow this appeal and set aside the judgment under
challenge and restore the order passed by the Sessions Judge dismissing
the complaint.

27
 Sayed Mohmad Zayauddin Shah Sahibmiyan Alti Versus Noorbibi And
Vazirbibi Hasanbhai-1981 GLR 120
It is significant to note that u/s. 145 the only enquiry which the Magistrate is
required to make after making an order u/s. 145(1) is to find out whether
any of the parties to the proceedings was on the date of the order in
possession of the subject of dispute; and if he finds that one of the parties
to the proceedings was in possession of the subject of dispute, he required
to made a declaration to that effect; and then the party aggrieved will have
to seek his remedy in a competent Court and not to disturb in the
meanwhile possession of the party, who is declared to be in possession by
the Magistrate. If the Magistrate on the other hand comes to the conclusion
at the end of the enquiry that none of the parties to the proceedings was in
such possession as is referred to in sec. 145, or if he is unable to satisfy
himself as to which of the parties was then in such possession of the
subject of dispute, he may attach the subject of dispute until a competent
Court has determined the rights of the parties thereto with regard to the
person entitled to the possession thereof. It would, thus appear that the
question whether the case is one of emergency or not is required to be
decided at the initial stage particularly when a party to the proceeding
applies to the Magistrate for passing an order of attachment on that
ground; and that decision would hold the field till the enquiry is over. Such
an order can be passed ex-parte. The effect of the order may be to
summarily evict a person in possession of the property at the time of
passing the order of attachment. It, therefore, cannot be said that it is an
order which does not affect the rights or liabilities of the parties; nor can it
be said that it does not decide any question finally and that it is not a
matter of movement. In that view of the matter, with respect, I am unable to
agree with the observations of the Allahabad High Court in Premlata's case
(supra), and following the ratio laid down by the Supreme Court in the
cases of Madhu Limaye V/s. Amar Nath and Baldevdas (supra), I hold that
an order of attachment passed by the Executive Magistrate u/s. 146(1) of
the Code is not an interlocutory order for the purpose of sec. 397(2). The
revision application filed by opponent No. 1 against such an order was,
therefore, clearly maintainable. The first contention raised by Mr. Baqui is
therefore, rejected.

Opportunity of being heard to accused in Revision Application

RAGHU RAJ SINGH ROUSHA Versus SHIVAM SUNDARAM PROMOTERS

(P)L.2009 1 SCC(Cri) 801
(8) MR. Jaspal Singh, learned senior counsel appearing on behalf of the
respondent No. 1, on the other hand, would contend that the criminal

28
revision application having been filed at the pre-cognizance stage, the
accused has no right to be heard. Strong reliance in this behalf has been
placed on Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose
and another [air 1963 SC 1430] and Mohd. Yousuf v. Afaq Jahan (Smt)and
Another [ (2006) 1 scc 627].

(9) A person intending to set the criminal law in motion inter alia may file
an application under Section 156 (3) of the Code. When a First information
Report is lodged, a police officer has the requisite jurisdiction to investigate
into the cognizable offence in terms of Section 156 (1) of the code. Where,
however, a Magistrate is entitled to take cognizance of the offence under
Section 190 of the Code, he may also direct that such investigation be
carried out in terms thereof. When a complaint petition is filed under
Chapter XV of the Code, the magistrate has a few options in regard to
exercise of his jurisdiction. He may take cognizance of the offence and
issue summons. He may also postpone the issue of process so as to
satisfy himself that the allegations made in the complaint petition are prima
facie correct and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other person as he
thinks fit for the purpose of deciding as to whether or not there is sufficient
ground for proceeding. By reason of the aforementioned order dated 7. 02.
2008, the learned Magistrate intended to inquire into the case himself. It is
for the said purpose, he directed examination of the complainant and his
witnesses.

(10) ONE of the questions which arises for consideration is as to whether

the learned Magistrate has taken cognizance of the offence. Indisputably,
if he had taken cognizance of the offence and merely issuance of
summons upon the accused persons had been postponed; in a criminal
revision filed on behalf of the complainant, the accused was entitled to be
heard before the High Court.

(11) SECTION 397 of the Code empowers the High Court to call for
records of the case to exercise its power of revision in order to satisfy itself
as regards correctness, legality or propriety of any finding, sentence or
order recorded or passed and as to the regularity of any proceedings of
such inferior court. Sub-section (2) of Section 397 of the Code, however,
prohibits exercise of such power in relation to any interlocutory order
passed in any proceeding. Whereas Section 399 of the Code deals with
the sessions Judge's power of revision; Section 401 thereof deals with the
High court's power of revision. Sub-section (2) of Section 401 of the Code
reads, thus:

29
"(2) No order under this section shall be made to the prejudice of the
accused or other person unless he has had an opportunity of being heard
either personally or by pleader in his own defence. "

(12) SUBMISSION of Mr. Jaspal Singh that by reason of the impugned

order the appellant was not prejudiced and in any event at the pre-
summoning stage, he was not an accused, cannot be accepted. Sub-
section (2) of Section 401 of the Code refers not only to an accused
but also to any person and if he is prejudiced, he is required to be
heard. An order was passed partially in his favour. The learned
metropolitan Magistrate has refused to exercise its jurisdiction under
section 156 (3) of the Code. Had an opportunity of hearing been given
to the appellant, he could have shown that no revision application
was maintainable and/ or even otherwise, no case has been made out
for interference with the impugned judgment.

(13) IN Makkapati Nagaswara Sastri v. S. S. Satyanarayan [ (1981) 1 scc

62], this Court opined that the principle of audi alteram partem is
applicable in a proceeding before the High Court. Yet again in P.
Sundarrajan and Others v. R. Vidhya Sekar [ (2004) 13 scc 472], this
Court held:

"4. On the above basis, it proceeded to consider the material produced by

the petitioner before it and without taking into consideration the defence
that was available to the respondent proceeded to set aside the order of
the Magistrate, and directed the said court to take the complaint on file and
proceed with the same in accordance with law. 5. In our opinion, this order
of the High Court is ex facie unsustainable in law by not giving an
opportunity to the appellant herein to defend his case that the learned
Judge violated all principles of natural justice as also the requirement of
law of hearing a party before passing an adverse order. "

(14) WE may also notice that this Court in Vadilal Panchal v. Dattatraya
dulaji Ghadigaonkar and another [air 1960 SC 1113], opined:

"9. The general scheme of the aforesaid sections is quite clear. Section
200 says inter alia what a Magistrate taking cognisance of an offence

MANHARIBHAI MULJIBHAI KAKADIA VS SHAILESHBHAI

MOHANBHAI PATEL , 01 Oct 2012-2012(10) SCC 517
54. In a case where the complaint has been dismissed by the Magistrate
under Section 203 of the Code either at the stage of Section 200 itself or
on completion of inquiry by the Magistrate under Section 202 or on receipt
of the report from the police or from any person to whom the direction was
30
issued by the Magistrate to investigate into the allegations in the
complaint, the effect of such dismissal is termination of complaint
proceedings. On a plain reading of sub-section (2) of Section 401, it
cannot be said that the person against whom the allegations of having
committed offence have been made in the complaint and the complaint
has been dismissed by the Magistrate under Section 203, has no right to
be heard because no process has been issued. The dismissal of complaint
by the Magistrate under Section 203 – although it is at preliminary stage –
nevertheless results in termination of proceedings in a complaint against
the persons who are alleged to have committed crime. Once a challenge is
laid to such order at the instance of the complainant in a revision petition
before the High Court or Sessions Judge, by virtue of Section 401(2) of the
Code, the suspects get right of hearing before revisional court although
such order was passed without their participation. The right given to
“accused” or “the other person” under Section 401(2) of being heard
before the revisional court to defend an order which operates in his favour
should not be confused with the proceedings before a Magistrate under
Sections 200, 202, 203 and 204. In the revision petition before the High
Court or the Sessions Judge at the instance of complainant challenging
the order of dismissal of complaint, one of the things that could happen is
reversal of the order of the Magistrate and revival of the complaint. It is in
this view of the matter that the accused or other person cannot be
deprived of hearing on the face of express provision contained in Section
401(2) of the Code. The stage is not important whether it is pre-process
stage or post process stage.

55. In P. Sundarrajan1, a two-Judge Bench of this Court was concerned

with a case where a complaint under Section 420 IPC came to be
dismissed by the Judicial Magistrate. Against the order of dismissal of the
complaint, the complainant preferred revision petition before the High
Court. The High Court was of the view that no notice was necessary to the
suspects for disposal of the revision and set aside the order of the
Magistrate and directed the Magistrate to proceed with the complaint
afresh in accordance with law. Against the order of the High Court, the
suspects approached this Court under Article 136. The Court granted
leave and allowed the appeal, set aside the order of the High Court and
sent the matter back to the High Court with a direction to issue proper
notice to the persons accused of the crime in the complaint and proceed
with the revision petition after affording them a reasonable opportunity of
hearing. This Court in paragraphs 5 and 6 of the Report (Pg. 472 and 473)
held as under:

“5. In our opinion, this order of the High Court is ex facie unsustainable in
law by not giving an opportunity to the appellant herein to defend his case

31
that the learned Judge violated all principles of natural justice as also the
requirement of law of hearing a party before passing an adverse order.

6. We have, therefore, no hesitation in allowing this appeal, setting aside

the impugned judgment and remanding the matter to the High Court to
issue proper notice to the appellant herein who is the respondent in the
criminal revision petition before it and afford him a reasonable opportunity
of hearing and to pass appropriate orders. The appeal is allowed.”

56. In Raghu Raj Singh Rousha2, a two-Judge Bench of this Court was
faced with a question whether, in the facts and circumstances of the case,
the High Court in exercise of its jurisdiction under Sections 397 and 401 of
the Code was justified in passing an order in the absence of the accused
persons. That was a case where a complaint was filed under Section 200
of the Code in respect of offences punishable under Sections 323, 382,
420, 465, 468, 471, 120-B, 506 and 34 of IPC. Along with the complaint,
an application under Section 156(3) was also made. The Metropolitan
Magistrate passed an order refusing to direct investigation under Section
156(3) and the complainant was asked to lead pre-summoning evidence.
The complainant aggrieved by the order of the Metropolitan Magistrate
filed a revision petition before the High Court. The High Court with the
consent of the APP appearing for the State set aside the order of the
Metropolitan Magistrate with a direction to him to examine the matter
afresh after calling for a report from the police authorities. It is from this
order that the matter reached this Court at the instance of the
suspect/accused. The Court observed that if

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2178 OF 2017
(Arising out of S.L.P.(Crl.)No.8030 of 2017)
Madan Mohan VERSUS State of Rajasthan & Ors
14) In our considered opinion, the Single Judge seemed to have passed
the impugned order without application of judicial mind inasmuch as he
committed two glaring errors while passing the order. First, he failed to see
that the complainant at whose instance the Sessions Judge had passed
the order and had allowed his application under Section 193 of the Code
was a necessary party to the criminal revision along with the State.
Therefore, he should have been impleaded as respondent along with the
State in the 7 revision. In other words, the Complainant also had a right of
hearing in the Revision because the order impugned in the Revision was
passed by the Session Judge on his application. This aspect of the case
was, however, not noticed by the Single Judge

32
 Criminal Revision Application against the order passed by Magistrate
under section 156(3) of CrPC

Parmar Rameshchandra Ganpatray & Ors. Versus State of Gujarat & Anr. –
2017(3) GLR1825
41. An order under section 156(3) Cr.P.C. passed by the Magistrate
directing the police officer to investigate a cognizable case on the other
hand is no such order of moment, which impinges on any valuable rights of
the party. Where any objection to the issuance of such a direction to be
accepted (though it is difficult to visualize any objection which could result
in the quashing of a simple direction for investigation), the proceedings
would still not come to an end, as it would be open to the complainant
informant to move an application under section 154(3) before the
Superintendent of Police (S.P.) or a superior officer under section 36 of the
Code. He could also file a complaint under section 190 read with section
200 of the Code. This is the basic difference from the situations mentioned
in Madhu Limaye, AIR 1978 SC 47 and in Amar Nath's cases, AIR 1977
SC 2185, where acceptance of the objections could result in the said
accused being discharged or the summons set aside, and the proceedings
terminated. Also the direction for investigation by the Magistrate is but an
incidental step in aid of investigation and trial. It is thus similar to orders
summoning witnesses, adjourning cases, orders granting bail, calling for
reports and such other steps in aid of pending proceedings which have
been described as purely interlocutory in nature in Amar Nath (supra).

42. In this connection it has been aptly noted in Devarapalli

Lakshminarayana Reddy v. Narayan Reddy, AIR 1976 SC 1672, that "an
order made under subsection (3) of Section 156, is in the nature of a
peremptory reminder or intimation to the police to exercise their plenary
powers of investigation under Section 156 (1)."

43. The power conferred under section 156 (3) Cr.P.C. is of the same
nature as the power under section 156(1), which is the power conferred on
a police officer incharge of a police station to investigate any cognizable
case to investigate a case, without orders of the Magistrate, which the
Magistrate of the local area would have power to inquire into or try. The
police officer records an FIR in accordance with the procedure mentioned
in section 154(1) of the Code. In the event of the failure of the police officer
to record the information, the aggrieved informant has been given a right to
approach the Superintendent of Police under section 154(3) for a direction
for investigation. Such powers may also be exercised by any officer
superior in rank to an officer incharge of a police station in view of S. 36 of
the Code. The powers of a Magistrate for giving directions under section
156(3) is thus allied to the powers of police officers under sections 154(1),
33
154(3) and 36 of the Code. It would thus be highly illogical to suggest that
the Courts have no jurisdiction to interfere in a criminal revision or other
judicial proceedings with the decision of the police officer incharge of the
police station to lodge an FIR under section 154(1) of the code or by a
superior officer under section 154(3), or the actual investigation conducted
by the police under the aforesaid provisions, but the initial order of the
Magistrate under section 156(3) Cr.P.C. peremptorily reminding the police
to perform its duty and investigate a cognizable offence could be subject to
challenge in a criminal revision or other judicial proceeding.

44. We thus see that the orders for investigation are only an ancillary step
in aid of the investigation or trial, and are clearly interlocutory in nature,
similar to orders granting bail, or calling for records, or issuing search
warrants, or summoning witnesses and other like matters which infringe no
valuable rights of the prospective accused, and are not amenable to
challenge in a criminal revision, in view of the bar contained in section
397(2) of the Code.

45. Also the situations in Madhu Limaye, AIR 1978 SC 47 or in Amar

Nath's cases, AIR 1977 SC 2185 are clearly distinguishable, where refusal
to consider the objections raised on behalf of the accused may have
prevented his being discharged and may have caused him to be
summoned to face trial, resulting in the orders being described as neither
final nor interlocutory, but intermediate in nature. Revisions against the
said intermediate orders would therefore not attract the bar under section
397(2). Acceptance of the objection to the direction for investigation under
section 156(3) at the precognizance stage, would however not result in the
closure of the proceedings against the accused, as the complainant/
informant could have sought summoning of the accused by filing a
complaint under section 190(a) read with 200 or by moving an application
for investigation before the S.P. or other superior officer under section
154(3) or S. 36 of the code (if that step had not earlier been taken). From
the above discussion it follows that the said orders are clearly interlocutory
in nature, and not revisable in view of the bar contained in section 397(2)
of the Code.

51. Likewise in Rakesh Puri and Anr. v. State of U.P., 2007 (1) ALJ 169
(supra), Smt. Rekha Verma and others v. State of U. P. and others, 2007
(57) ACC 241 : 2007 (1) ALJ (NOC) 123 and Abdul Aziz v. State of U.P.,
Paragraph 13 (supra) it has been held by single Judge decisions of this
Court that neither a criminal Revision nor an Application under section 482
Cr.P.C. would lie against the direction of the Magistrate to register and
investigate an FIR in exercise of powers under section 156 (3) Cr.P.C. In
Abdul Aziz it has further been held that only after an FIR can an accused

34
move the High Court in its writ jurisdiction under Article 226 of the
Constitution of India for quashing of the FIR, but prior to the registration of
the F.I.R., the prospective accused has no right to challenge that order.
The Full Bench of this Court in the case of Laxminarayan Vishwanath Arya
v. State of Maharashtra & others, 2007 (5) MhLJ 7 on the basis of the
decision in the case of M.C. Abraham & Others vs. Maharashtra & others
(2003 Bom.C.R. (Cri), 650 (SC) stated thus in paragraph no.21 as under:-

"21. The provisions of Section 41 of the criminal procedure Code,

1973, hereinafter referred to as "the Code", provides for arrest by a Police
Officer without an order from a Magistrate and without a warrant. A distinct
and different power under Section 44 of the code empowers the Magistrate
to arrest or order any person to arrest the offender. Under Section 44 of
the Code, that power is vested in the Court of the Magistrate when an
offence is committed in his presence. If the Legislature has taken care of
providing such specific power under Section 44 of the Code, then there
could be no reason for such a power not to be specified under the
provisions of Chapter XII of the Code. In terms of Section 41, a police
officer may arrest a person without a warrant or order from the Magistrate
for any or all of the conditions specified in that provision. Language of this
provision clearly suggested that the Police Officer can arrest a person
without an order from the Magistrate. Thus, there appears to be no reason
why on the strength of Section 156(3) of the Code, any restriction should
be read into the powers specifically granted by the legislature to the Police
Officer. Of course, freedom of investigation is the essence of these
provisions but in order to suppress the mischief it is sufficiently indicated
under different provisions of the code that the arresting officer should
exercise his power or discretion judiciously and should be free of motive.
Some kind of inbuilt safeguard is available to the accused in the cases
where the Magistrate directs investigation under Section 156(3) of the
code by taking recourse to the provisions of Section 438 of the code by
approaching the Court of Session or the High Court for such relief. Thus,
during the course of investigation of a criminal case, an accused is not
remediless and that would further buttress the above view taken by us."

The Full Bench also stated thus in paragraph nos.12 and 13 as

follows:-

"12. Another aspect is the case would be dependent on the

construction of language under Section 156(3) of the Code. Though this
provision does empower the Magistrate to order an investigation, the
Legislature in its wisdom had extended no further power to the Magistrate
to control or intercheck or stop or give direction to the mode of
investigation. The scheme of the investigation thus postulate investigation

35
uncontrolled by the Magistrate. This was also the view taken by the
Supreme Court in S.N. Sharma v. Bipen Kumar Tiwari and ors., 1970 (1)
SCC 653 and State of Bihar v. J.A.C. Saldanha and Ors., 1980 (1) SCC
534.

13. Consistent is the view taken by the Court for decades now on this
aspect of investigation of offence. These principles had pervaded effect on
the mode and control of investigation by the investigating agency. These
precepts have been relegated with variance."

10. The learned counsel for the parties have cited before us decision
of the Full Bench of Allahabad High Court in the case of Father Thomas v.
State of U.P. & another reported at 2011 CrLJ 2278. We have perused the
said decision and we think that the said decision is clearly distinguishable
since the Full Bench of Allahabad High Court did not advert to the fact of
termination of the proceedings u/s 156(3) of the code after passing of the
order by the Magistrate thereunder and thus the said proceeding ending
into final order.

11. It is thus clear from the above that the investigation pursuant to the
order u/s 156(3) of the code is not controlled by the Magistrate and that
was what was held by the Supreme Court in the case of S.N. Sharma v.
Bipen Kumar Tiwari and State of Bihar v. J.A.C. Saldanha and Ors., as
stated in the Full Bench judgment. To repeat, after making of order u/s
156(3) of the Code, the Magistrate has further nothing to do and the
proceeding u/s 156(3) of the code gets terminated. Nothing remains
pending before the Magistrate after such order is made. Thus, despite
termination of the proceeding u/s 156(3) of the code of criminal Procedure,
1973 and in the light of the principle 'ubi jus ibi remedium', the
petitioners/applicants cannot be denied the statutory remedy of revision.

12. Learned counsel have further cited decision of the Supreme Court
in Dharmeshbhai Vasudevbhai & others v. State of Gujarat & others
reported at (2009) 6 SCC 576. We quote paragraph nos.6 to 8 from this
decision as under:-

“6. The power of the court to interfere with an investigation is limited. The
police authorities, in terms of Section 156 of the code of criminal
Procedure, exercise a statutory power. The code of criminal procedure has
conferred power on the statutory authorities to direct transfer of an
investigation from one police station to another in the event it is found that
they do not have any jurisdiction in the matter. The court should not
interfere in the matter at an initial stage in regard thereto. If it is found that
the investigation has been conducted by an investigating officer who did

36
not have any territorial jurisdiction in the matter, the same should be
transferred by him to the police station having the requisite jurisdiction.”

49. The Supreme Court in Dharmeshbhai Vasudevbhai and Others v.

State of Gujarat and Others, (2009) 6 SCC 576, in paras 8, 9 & 10, has
held thus :-

“8. Interference in the exercise of the statutory power of investigation

by the police by the Magistrate far less direction for withdrawal of any
investigation which is sought to be carried out is not envisaged under the
code of criminal Procedure. The Magistrate’s power in this regard is
limited. Even otherwise, he does not have any inherent power. Ordinarily,
he has no power to recall his order. This aspect of the matter has been
considered by this Court in S.N. Sharma v. Bipen Kumar Tiwari wherein
the law has been stated as under: (SCC pp. 656-57, paras 67)

“6. Without the use of the expression ‘if he thinks fit’, the second
alternative could have been held to be independent of the first; but the use
of this expression, in our opinion, makes it plain that the power conferred
by the second clause of this section is only an alternative to the power
given by the first clause and can, therefore, be exercised only in those
cases in which the first clause is applicable.

7. It may also be further noticed that, even in subsection (3) of Section

156, the only power given to the Magistrate, who can take cognizance of
an offence under Section 190, is to order an investigation; there is no
mention of any power to stop an investigation by the police. The scheme of
these sections, thus, clearly is that the power of the police to investigate
any cognizable offence is uncontrolled by the Magistrate, and it is only in
cases where the police decide not to investigate the case that the
Magistrate can intervene and either direct an investigation, or, in the
alternative, himself proceed or depute a Magistrate subordinate to him to
proceed to enquire into the case. The power of the police to investigate
has been made independent of any control by the Magistrate.”

9. Interpreting the aforementioned provisions vis-à-vis the lack of

inherent power in the Magistrate in terms of Section 561A of the old
criminal procedure code (equivalent to Section 482 of the new code of
criminal Procedure), it was held: (S.N. Sharma case3, SCC p. 657, para
10)

“10. This interpretation, to some extent, supports the view that the
scheme of the criminal procedure code is that the power of the police to
investigate a cognizable offence is not to be interfered with by the

37
judiciary. Their Lordships of the Privy Council were, of course, concerned
only with the powers of the High Court under Section 561A CrPC, while we
have to interpret Section 159 of the code which defines the powers of a
Magistrate which he can exercise on receiving a report from the police of
the cognizable offence under Section 157 of the Code. In our opinion,
Section 159 was really intended to give a limited power to the Magistrate
to ensure that the police investigate all cognizable offences and do not
refuse to do so by abusing the right granted for certain limited cases of not
proceeding with the investigation of the offence.”

10. Yet again in Devarapalli Lakshminarayana Reddy v. V. Narayana

Reddy this Court, upon comparison of the provision of the old code and
the new Code, held as under: (SCC p. 258, para 17)

“17. Section 156(3) occurs in Chapter XII, under the caption: ‘Information
to the police and their powers to investigate’; while Section 202 is in
Chapter XV which bears the heading: ‘Of complaints to Magistrates’. The
power to order police investigation under Section 156(3) is different from
the power to direct investigation conferred by Section 202(1). The two
operate in distinct spheres at different stages. The first is exercisable at
the precognizance stage, the second at the postcognizance stage when
the Magistrate is in seisin of the case. That is to say in the case of a
complaint regarding the commission of a cognizable offence, the power
under Section 156(3) can be invoked by the Magistrate before he takes
cognizance of the offence under Section 190(1)(a). But if he once takes
such cognizance and embarks upon the procedure embodied in Chapter
XV, he is not competent to switch back to the precognizance stage and
avail of Section 156(3). It may be noted further that an order made under
subsection (3) of Section 156, is in the nature of a peremptory reminder or
intimation to the police to exercise their plenary powers of investigation
under Section 156(1). Such an investigation embraces the entire
continuous process which begins with the collection of evidence under
Section 156 and ends with a report or chargesheet under Section 173. On
the other hand, Section 202 comes in at a stage when some evidence has
been collected by the Magistrate in proceedings under Chapter XV, but the
same is deemed insufficient to take a decision as to the next step in the
prescribed procedure. In such a situation, the Magistrate is empowered
under Section 202 to direct, within the limits circumscribed by that section
an investigation ‘for the purpose of deciding whether or not there is
sufficient ground for proceeding’. Thus the object of an investigation under
Section 202 is not to initiate a fresh case on police report but to assist the
Magistrate in completing proceedings already instituted upon a complaint
before him.” (Emphasis supplied)”

38
 50. A learned Single Judge of the Chhatisgarh High Court in the case
of Amarnath Agrawal vs. Jai Singh Agrawal and others [Writ Petition (Cr)
No.116 of 2013 decided on 10th February 2015] had the occasion to
consider the very same issue. After an elaborate discussion of various
decisions of the Supreme Court referred to above, the final conclusion
drawn is as under:-

“Investigation into a cognizable offence by Incharge of jurisdictional

police station is a statutory power. Once an information is sent to the
jurisdictional police regarding commission of a cognizable offence, it is the
statutory duty of the said police to investigate offence. [Lalita Kumari
(supra)]

The accused has no right to have any say as regards the manner and
method of investigation of an offence. W.N. Chadha (supra), Sri Bhagwan
Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj (supra)
and Rajesh Gandhi (supra).

The power of the Court to interfere with the investigation is limited.

Naresh Kavarchand Khatri (supra).

Under Section 156 (3) of the Cr.P.C. Magistrate is conferred limited

power to ensure that the police investigate all cognizable offences and do
not refuse to do so by abusing the right granted for certain limited cases of
not proceeding with the investigation of the offence Dharmeshbhai
Vasudevbhai (supra).

Exercise of power by a Magistrate under Section 156 (3) is at the

precognizance stage. Such exercise is done by the Magistrate when the
concerned police officer fails to investigate the matter as is obligatory upon
him.

To exercise revisory power under Section 397, the Court whose order
is sought to be revised must have recorded some finding, order or
sentence or have drawn a proceeding which is ex facie illegal or without
jurisdiction. While directing the police officer to investigate the matter the
Magistrate neither records any finding nor passes any order or sentence
against the accused because at that stage the registration of FIR is only
against the prospective accused.

If it is held that an order under Section 156(3) of the code is revisable,

the same would amount to clothing the Sessions Court with the power of
quashing the FIR or investigation. Such power is conferred only on the
High Court under Section 482 of the code or under Article 226, 227 of the

39
 Constitution of India.”

[MOST IMPORTANT] 51. In view of the aforesaid discussion, I hold that

the order under Section 156(3) of the code of criminal Procedure, 1973 is
an “interlocutory order” and the revision under Section 397 read with
Section 401 of the Cr.P.C. would not lie. At the same time, an order of the
Magistrate rejecting an application under Section 156(3) of the code for the
registration of a case by the police and for investigation is not an
“interlocutory order Such an order is amenable to the remedy of a criminal
revision under Sections 397 read with 401 of the Cr.P.C.

52. This application, therefore, fails and is hereby rejected.

Application dismissed.

Dhariwal Tobacco Products Ltd V/S State of Maharastra (2009) 2 SCC 370

Held indisputably issuance of summons is not an interlocutory order within

the meaning of Section 397
Urmila Devi Vs. Yudhvir Singh- (2013) 15 SCC 624
41. Having regard to the said categorical position stated by this Court in
innumerable decisions resting with the decision in Rajendra Kumar
Sitaram Pande (supra), as well as the decision in K.K. Patel (supra), it will
be in order to state and declare the legal position as under:

(i) The order issued by the Magistrate deciding to summon an

accused in exercise of his power under Sections 200 to 204 Cr.P.C. would
be an order of intermediatory or quasi-final in nature and not interlocutory
in nature.

(ii) Since the said position viz., such an order is intermediatory order
or quasi-final order, the revisionary jurisdiction provided under Section
397, either with the District Court or with the High Court can be worked out
by the aggrieved party.

(iii) Such an order of a Magistrate deciding to issue process or

summons to an accused in exercise of his power under Section 200 to 204
Cr.P.C., can always be subject matter of challenge under the inherent
jurisdiction of the High Court under Section 482 Cr.P.C.
State of Rajasthan V/S Fatehkaran Mehdu (2017) 3 SCC 198
(when court under section 397 can quash the charge framed)
[MOST IMPORTANT]-
27. Now, reverting to the limit of the scope of jurisdiction under
Section 397 Cr. P.C., which vests the court with the power to call for and
40
examine the records of an inferior court for the purposes of satisfying itself
as to the legality and regularity of any proceedings or order made in a
case. The object of this provision is to set right a patent defect or an error
of jurisdiction or law or the perversity which has crept in the proceeding.

28. It is useful to refer to judgment of this Court in Amit Kapoor and

Ramesh Chander and Another, (2012) 9 scc 460, where scope of Section
397 Cr. P.C. have been succinctly considered and explained. Para 12 and
13 are as follows:

"12. Section 397 of the Code vests the court with the power to call
for and examine the records of an inferior court for the purposes of
satisfying itself as to the legality and regularity of any proceedings or order
made in a case. The object of this provision is to set right a patent defect
or an error of jurisdiction or law. There has to be a well-founded error and it
may not be appropriate for the court to scrutinize the orders, which upon
the face of it bears a token of careful consideration and appear to be in
accordance with law. If one looks into the various judgments of this Court,
it emerges that the revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own merits."

"13. Another well-accepted norm is that the revisional jurisdiction of

the higher court is a very limited one and cannot be exercised in a routine
manner. One of the inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to whether the charge has
been framed properly and in accordance with law in a given case, it may
be reluctant to interfere in exercise of its revisional jurisdiction unless the
case substantially falls within the categories aforestated. Even framing of
charge is a much advanced stage in the proceedings under the CrPC."

29. The Court in para 27 has recorded its conclusion and laid down
principles to be considered for exercise of jurisdiction under Section 397
particularly in context of quashing of charge framed under Section 228 Cr.
P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:

"27. Having discussed the scope of jurisdiction under these two

provisions, i.e., Section 397 and Section 482 of the Code and the fine line
of jurisdictional distinction, now it will be appropriate for us to enlist the

41
principles with reference to which the courts should exercise such
jurisdiction. However, it is not only difficult but is inherently impossible to
state with precision such principles. At best and upon objective analysis of
various judgments of this Court, we are able to cull out some of the
principles to be considered for proper exercise of jurisdiction, particularly,
with regard to quashing of charge either in exercise of jurisdiction under
Section 397 or Section 482 of the Code or together, as the case may be:

27.1) Though there are no limits of the powers of the Court under
Section 482 of the Code but the more the power, the more due care and
caution is to be exercised in invoking these powers. The power of
quashing criminal proceedings, particularly, the charge framed in terms of
Section 228 of the Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.

27.2) The Court should apply the test as to whether the

uncontroverted allegations as made from the record of the case and the
documents submitted therewith prima facie establish the offence or not. If
the allegations are so patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and where the basic
ingredients of a criminal offence are not satisfied then the Court may
interfere.

27.3) The High Court should not unduly interfere. No meticulous

examination of the evidence is needed for considering whether the case
would end in conviction or not at the stage of framing of charge or
quashing of charge.

27.9) Another very significant caution that the courts have to

observe is that it cannot examine the facts, evidence and materials on
record to determine whether there is sufficient material on the basis of
which the case would end in a conviction; the Court is concerned primarily
with the allegations taken as a whole whether they will constitute an
offence and, if so, is it an abuse of the court leading to injustice.

27.13) Quashing of a charge is an exception to the rule of

continuous prosecution. Where the offence is even broadly satisfied, the
Court should be more inclined to permit continuation of prosecution rather
than its quashing at that initial stage. The Court is not expected to marshal
the records with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima facie."

30. Applying the above tests, we are of the considered opinion that
High Court erred in quashing the charges framed by the order dated

42
05.05.2009. In result, both the appeals are allowed. The order of the High
Court is set aside and the order dated 05.05.2009 is restored. The learned
Special Judge may proceed with the trial in accordance with the law
expeditiously.
No new plea on the facts can be permitted by the revisional court-
Vinita S Rao V/S Essen Corporate Service (P)Ltd (2015) 1 SCC 527
CEAT TYRES LTD.A COMPANY REGISTERED VERSUS STATE OF
GUJARAT – 2007 (2) GLR 1437
Thus, a mere decision of giving exhibit numbers by the learned
Metropolitan magistrate could not have been challenged in the Revision
Application preferred by the respondent Nos. 2 to 4. Against the said order,
Revision Application is not tenable at law. It has been decided by the Apex
Court in the case of BIPIN SHANTILAL panchal V/s. STATE OF GUJARAT
AND another, REPORTED IN (2001) 3 SCC, 01 in paragraphs 11, 12, 13
and 14 as under:"11. We are compelled to say that the trial Judge should
have shown more sensitivity by adopting all measures to accelerate the
trial procedure in order to reach its finish within the time frame indicated by
this Court in the order dated 31. 3. 2000 since he knew very well that
under his orders - an accused is continuing in jail as an under trial for a
record period of more than seven years. Now, we feel that the additional
Judge, whether the present incumbent or his predecessor, was not serious
in complying with the directions issued by this Court, though the parties in
the case have also contributed their share in bypassing the said direction.
"12. As pointed out earlier, on different occasions the trial Judge has
chosen to decide questions of admissibility of documents or other items of
evidence, as and when objections thereto were raised and then detailed
orders were passed either upholding or overruling such objections. The
worse part is that after passing the orders the trial court waited for days
and weeks for the parties concerned to go before the higher courts for the
purpose of challenging such interlocutory orders. 13. It is an archaic
practice that during the evidence-collecting stage, whenever any objection
is raised regarding admissibility of any material in evidence the court does
not proceed further without passing order on such objection. But the fallout
of the above practice is this: Suppose the trial court, in a case, upholds a
particular objection and excludes the material from being admitted in
evidence and then proceeds with the trial and disposed of the case finally.
If the appellate or revisional court, when the same question is
recanvassed, could take a different view on the admissibility of that
material in such cases the appellate court would be deprived of the benefit
of that evidence, because that was not put on record by the trial court. In
such a situation the higher court may have to send the case back to the
trial court for recording that evidence and then to dispose of the case
afresh. Why should the trial prolong like that unnecessarily on account of
43
practices created by ourselves. Such practices, when realised through the
course of long period to be hindrances which impede steady and swift
progress of trial proceedings, must be recast or remoulded to give way for
better substitutes which would held acceleration of trial proceedings. 14.
When so recast, the practice which an be a better substitute is this:
whenever an objection is raised during evidence-taking stage regarding
the admissibility of any material or item of oral evidence the trial court can
make a note of such objection and mark the objected documents
tentatively as an exhibit in the case (or record the objected part of the oral
evidence) subject to such objections to be decided at the last stage in the
final judgment. If the court finds at the final stage that the objection so
raised is sustainable the Judge or Magistrate can keep such evidence
excluded from consideration. In our view there is no illegality in adopting
such a course. (However, we make it clear that if the objection relates to
deficiency of stamp duty of a document the court has to decide the
objection before proceeding further. For all other objections the procedure
suggested above can be followed. "by giving exhibits with objections
recorded, to the documents, the court is not concluding its mind. Exhibit
numbers given to the documents with objections recorded, only reveal the
fact that they are relevant documents. Relevancy is seen by the court.
Even looking to the provisions of sections 145 (2) of the Act of 1881, the
court can put the question to the said witness who is always available for
his cross-examination. Even otherwise also, as stated by the learned
advocate for the applicant that the applicant, i. e. the original complainant
is always available to the court for his cross-examination. He is always
attending the court. Thus, no prejudice has been caused to the respondent
Nos. 2 to 4. They can take cross-examination of the witness who has given
evidence-in-chief. Likewise, the court can also raise the question under
section 145 (2) of the Act of 1881. Cross-examination is a weapon in the
hands of the accused. He can substantially reduce the evidentiary value of
the document which is already exhibited by thorough and proper cross-
examination. It is an art with which lawyers are wedded. Merely because
the respondents have objections and therefore, the court cannot give
exhibit numbers is not the procedure. It is obvious that the rule of
procedure which is incorporated in section 145 does not affect any vested
right of either parties. The legislative intent as reflected from the
statements of objects and reasons of Amending Act is to ensure that the
procedure in complaints under section 138 should not be cumbersome and
there should be expeditious conclusion of trials. Section 145 which merely
affects the procedure will have to be presumed to be retrospective in its
operation and will apply to all complaints pending on 6th February, 2003. "

(5) LOOKING this aspect of the matter also, the newly added
sections 143 to 147 of the Act of 1881 are applicable to the present

44
 complaint and therefore, the decision taken by the learned Metropolitan
Magistrate, court No. 22, Ahmedabad is absolutely true and correct against
which Revision application preferred by the respondent Nos. 2 to 4 was not
tenable at law.

Criminal Revision Application and Mudamal applications under section

451 and 457 of Criminal Procedure Code

Sunderbhai Ambalal Desai vs State Of Gujarat (2002) 9 SCC 290

To avoid such a situation, in our view, powers under Section 451
Cr.P.C. should be exercised promptly and at the earliest. Valuable
Articles and Currency Notes With regard to valuable articles, such as
golden or sliver ornaments or articles studded with precious stones, it is
submitted that it is of no use to keep such articles in police custody for
years till the trial is over. In our view, this submission requires to be
accepted. In such cases, Magistrate should pass appropriate orders as
contemplated under Section 451 Cr.P.C. at the earliest. For this
purposes, if material on record indicates that such articles belong to the
complainant at whose house theft, robbery or dacoity has taken place,
then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchanama of such articles:
(2) taking photographs of such articles and a bond that such articles would
be produced if required at the time of trial; and (3) after taking proper
security.
For this purpose, the Court may follow the procedure of recording such
evidence, as it thinks necessary, as provided under Section 451 Cr.P.C.
The bond and security should be taken so as to prevent the evidence
being lost, altered or destroyed. The Court should see that photographs
or such articles are attested or countersigned by the complainant,
accused as well as by the person to whom the custody is handed over.
Still however, it would be the function of the Court under Section 451
Cr.P.C. to impose any other appropriate condition.
In case, where such articles are not handed over either to the
complainant or to the person from whom such articles are seized or to
its claimant, then the Court may direct that such articles be kept in bank
lockers. Similarly, if articles are required to kept in police custody, it
would be open to the SIIO after preparing proper panchnama to keep
such articles in a bank locker. In any case, such articles should be
produced before the Magistrate within a week of their seizure. If
required, the Court may direct that such articles be handed over back to
the Investigating Officer for further investigation and identification,
However, in no set of circumstances, the Investigating Officer should
keep such articles in custody for a longer period for the purpose of
45
investigation and identification. For currency notes, similar procedure
can be followed.
Vehicles Learned senior counsel Mr. Dholakia, appearing for the State
of Gujarat further submitted that at present in the police station
premises, number of vehicles are kept unattended and vehicles
become junk day by day. It is his contention that appropriate directions
should be given to the Magistrates who are dealing with such questions
to hand over such vehicles to its owner or to the person from whom the
said vehicles are seized by taking appropriate bond and the guarantee
for the return of the said vehicles if required by the Court at any point of
time.
However, the learned counsel appearing for the petitioners submitted
that this question of handing over vehicles to the person from whom it is
seized or to its true owner is always a matter of litigation and a lot of
arguments are advanced by the concerned persons.
In our view, whatever be the situation, it is of no use to keep such-
seized vehicles at the police stations for a long period. It is for the
Magistrate to pass appropriate orders immediately by taking
appropriate bond and guarantee as well as security for return of
the said vehicles, if required at any point of time. This can be done
pending hearing of applications for return of such vehicles.
In case where the vehicle is not claimed by the accused, owner, or
the insurance company or by third person, then such vehicle may be
ordered to be auctioned by the Court. If the said vehicle is insured
with the insurance company then insurance company be informed
by the Court to take possession of the vehicle which is not
claimed by the owner or a third person. If Insurance company fails
to take possession, the vehicles may be sold as per the direction of
the Court. The Court would pass such order within a period of six
months from the date of production of the said vehicle before the
Court. In any case, before handing over possession of such
vehicles, appropriate photographs of the said vehicle should be
taken and detailed panchnama should be prepared.
For articles such as seized liquor also, prompt action should be
taken in disposing it of after preparing necessary panchnama. If
sample is required to be taken, sample may kept properly after sending
it to the chemical analyser, if required. But in no case, large quantity
of liquor should be stored at the police station. No purpose is
served by such storing.
Similarly for the Narcotic drugs also, for its identification, procedure
under Section 451 Cr.P.C. should be followed of recording evidence
and disposal. Its identity could be on the basis of evidence recorded by
the Magistrate. Samples also should be sent immediately to the
Chemical Analyser so that subsequently, a contention may not be

46
 raised that the article which was seized was not the same.
However these powers are to be exercised by the concerned
Magistrate. We hope and trust that the concerned Magistrate
would take immediate action for seeing that powers under Section
451 Cr.P.C. are properly and promptly exercised and articles are
not kept for a long time at the police station, in any case, for not
more than fifteen days to one month. This object can also be
achieved if there is proper supervision by the Registry of the
concerned High Court in seeing that the rules framed by the High
Court with regard to such articles are implemented properly.

Abhay Shrenikbhai Gandhi Versus State Of Gujarat-Special

Criminal Application No. 7108 of 2015-08.12.2015
Para 11: Having heard the learned counsel appearing for the parties and
having considered the materials on record, the following questions fall
for my consideration in this application:

(a) Whether the registered owner of a vehicle seized by the Police, in

connection with an offence, in exercise of the powers under Section
102 of the Cr.P.C., can pray before the Court for release of the vehicle
pending trial on certain terms and conditions sitting in jail, that is,
being in the judicial custody?

(b)Whether the vehicle alleged to have been purchased from the money
misappropriated or embezzlement by the accused could be said to
have been found under circumstances which creates suspicion of
the commission of any offence? To put it in other words, whether
such vehicle could be termed as a ‘property’ regarding which an
offence could be said to have been committed.

Para 13: I am not impressed by the line of reasoning adopted by

the Courts below that the registered owner of the car being in the
judicial custody, the possession of the car cannot be ordered to be
handed over to him under Section 451 of the Cr.P.C. The dilemma
expressed by the Courts below seems to be that if the registered owner
of the car is in the judicial custody, then to whom the possession of the
car should be handed over. The applicant herein clarified that his
father has been given the power of attorney. He made himself clear
that the possession of the car could be handed over to his father who
will take care of the same pending trial and that too, after imposing
suitable terms and conditions with a view to protect the interest of the
prosecution as well as the depositors. I do not find anything in any of
the provisions of law which operates as a bar or which prohibits
the Court from releasing the vehicle in favour of the registered

47
 owner of the vehicle who may be in the judicial custody. The whole
object of ordering the release of any property seized by the Police in
connection with any offence is to see that such property does not get
damaged or deteriorated. On conclusion of the trial, it is always open
for the trial Court to pass an appropriate order as regards the
disposal of the property seized as Muddamal. The provisions of
Section 452 of the Cr.P.C. are very clear in that regard.

Para 14. In my view, the vehicle seized by the Police can be ordered to
be released subject to the terms and conditions even though the
registered owner may be in the judicial custody. The Court can even put
the person to whom the vehicle is handed over to terms. It is for the
Court to exercise its better discretion in the facts and circumstances of
each case. The Court can always consider who is the person taking
over the custody or the possession of the vehicle on behalf of the
registered owner. In the present case, the applicant prays that the
vehicle be released and handed over to his father. The father could
have been put to appropriate terms and conditions. I, therefore, answer
the first question accordingly.

Consequences of refusing to follow the well settled law

Para 76. The consequence of an authority not following the well

settled law amounts to contempt of Court as held by the Supreme
Court in East India Commercial Co. Ltd. v. Collector of Customs [1962
AIR(SC) 1893,], Makhan Lal v. State of Jammu and Kashmiar [(1971) 1
SCC 749], Baradakanta Mishra v. Bhimsen Dixit [(1973) 1 SCC 446],
Re: M.P. Dwivedi [(1996) 4 SCC 152], T.N. Godavarman Thirumulpad
v. Ashok Khot [(2006) 5 SCC 1], Maninderjit Singh Bittav. Union of India
[(2012) 1 SCC 273], Priya Gupta v. Addl. Secretary Ministry of Health
and Family Welfare and others (2013) 11 SCC 404] and various High
Courts in Hasmukhlal C. Shah v. State of Gujarat [1978 GLR 378],
State of Gujarat v. Secretary, Labour Social Welfare and Tribunal
Development Deptt. Sachivalaya [1982 Cr Law Journal 2255], C.T.
Subbarayappa v. University of Agricultural Sciences, Banglore [1998 (5)
Kar Law Journal 263], Parmal Singh v. Union of India [WP(C)
No.7231/2011, Delhi High Court], ExCT Nardev v. Union of India [2011
180 DLT 328] and Head of Department, Air Force Station Amla v. Ram
Kumar Gir [2010 (3) ACC 279].

Pareshkumar Jaykarbhai Brhambhatt Versus

State Of Gujarat- Special Criminal Application 8521 of 2017-Date :
15/12/2017
(Gujarat Prohibition Act)

48
Para 16 Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls for
my consideration is whether Section 98(2) of the Gujarat Prohibition
Act restricts or bars the jurisdiction of a Magistrate or Court to pass
an order under Section 451 of the Cr.P.C. to release the vehicle by way
of interim custody pending the investigation, trial or inquiry.
Para 40: The power of the Court under Section 451, as regards
custody of movable property, is not arbitrary. Even though, such
power is discretionary, it has to be exercised in a judicial manner.
Under this section, the Magistrate has no jurisdiction to investigate
and decide the question of title or ownership of the rival claimants to
the property. Only the question of possession of the property at the
time the case started, has to be gone into and decided before passing an
order for the custody under this section. Section 452 deals with order for
disposal of property at conclusion of trial. Section 457 deals with
procedure by police, upon seizure of property.

Para 41 The section 457 Cr.P.C. is general in its application and applies
to all cases of seizures of property by any police officer and such seizure is
reported to a Magistrate under the provisions of the Code but not produced
before him and provides for the procedure to be followed by the Magistrate
for the disposal of property.

Para 46 .The sum total of the aforesaid discussion is that if a Special Act
embodies elaborate provisions about dealing with the seized articles
including the confiscation and such special provisions are
independent of the provisions of the Cr.P.C. and protected by Section
5 of the Cr. P.C., then the provision of sections 451 or 457 Cr.P.C., as
the case may be, would not apply in cases of seizure and confiscation.

Para 51 I am unable to agree with the submission of Mr. A.D. Shah, the
learned Amicus Curiae that the Court should read into Section 98(2) of the
Act, 1949, the power of the Magistrate to release the vehicle in exercise of
power under Sections 451 or 457 of the Cr.P.C., as the case may be,
otherwise Section 99 of the Cr.P.C. would be rendered redundant. In my
view, the entire purpose of the legislation would be defeated if any other
literal construction was to be adopted. I am in agreement with the
submission of Mr. Raju, the learned Amicus Curiae that the words “during
the trial of a case” in Section 99 of the Act, should not be construed as
at any stage of the trial. In my view, Mr. Raju, the learned Amicus Curiae,
is right in submitting that Section 99 of the Act comes into play when
the Court decides to pass an appropriate order as regards the
disposal of the muddamal property under Section 452 of the Code of
Criminal Procedure. Section 452 contemplates disposal of property at

49
the conclusion of the trial and….

…..says that when an inquiry or trial for any Criminal Court is concluded,
the Court may make such order as it thinks fit for its disposal. This Section
452 refers to a stage when the trial is concluded. The word “inquiry” in
Section 452 should be construed as one necessary for the disposal of the
property i.e. confiscation, etc. The word “concluded” in Section 452
means, in my opinion, “concluded after a full hearing with a final
judgment for determination of the case against the accused”. For,
clearly an order under Section 452 can be made only on the basis of the
evidence recorded in the inquiry or trial, and in accordance with the
findings, the Magistrate may arrive at with material. Therefore, Section 99
comes into play on conclusion of the trial i.e. when the Court decides
to confiscate the vehicle. At that stage, the Court may conduct a
formal inquiry and in such an inquiry, an opportunity has to be given
to the person claiming the possession of the vehicle. At that stage,
the proviso to Section 99 comes into play.

In accordance with the proviso, the owner may adduce necessary

evidence to satisfy the Court that he had exercised due care in preventing
the commission of the offence and although the accused persons may be
held guilty and convicted, yet the vehicle involved in the commission of the
offence may not be confiscated. There is one more reason to take this
view. In Section 99, the words are “give the owner an option to pay
fine as the Court deems fit in lieu of confiscation”. The question of
payment of fine would come only on conclusion of the trial and not at
an earlier stage.

Para 60: I take notice of one somewhat identical provision in the Delhi
Excise Act (10 of 2010) by which the general provisions of Section 451 of
the Cr.P.C. with regard to the custody and disposal of the property has
been curtailed. The Supreme Court in the case of State (NCT of Delhi)
vs. Narender [AIR 2014 SC (Supp.) 1864] considered Section 61 of the
Delhi Excise Act. In the said case, a car was seized containing huge
quantity of liquor. During the course of the investigation, the respondent
therein claiming to be the owner of the vehicle filed an application for its
release on security before the Metropolitan Magistrate. The Magistrate
rejected the application on the ground that he had no power to release the
vehicle seized in connection with the offence under the Delhi Excise Act.
The respondent therein, thereafter, filed an application before the High
Court under Section 482 of the Cr.P.C. assailing the order passed by the
Metropolitan Magistrate. The High Court ordered the release of the vehicle.
The State, being dissatisfied with the order passed by the High Court,
challenged the same before the Supreme Court. Before the Supreme

50
 Court, it was argued by the State that Section 61 of the Act puts an
embargo on the jurisdiction of Courts.

Para 63: Once it is held that the Criminal Court had no power to order
interim release of the seized vehicle in exercise of the powers under
Sections 451 or 457 of the Cr.P.C., the question of the High Court
exercising its jurisdiction under Section 482 of the Code would not
arise.

Para 65: My final conclusion is that Section 98(2) of the Act, 1949
curtails the power of the Magistrate to order interim release of the
seized vehicle under Sections 451 or 457 of the Cr.P.C., as the case
may be. The Courts below will have no jurisdiction to order interim
release pending the trial of the seized vehicle in connection with the
offence under the Act, 1949, if the quantity of the liquor recovered
exceeds 10 litres in quantity.

Para 66 .The Legislature in its wisdom has prescribed a methodology to

deal with the prohibition offences, seizure, confiscation, release, etc. Once
such a procedure is prescribed, the Courts have to examine the
rights of the parties in accordance with the procedure so prescribed. I
am unable to hold that the Magistrate and Revisional Court have
committed any error in rejecting the applications preferred by the
respective applicants under Sections 451 or 457 of the Cr.P.C. In view of
the provisions of Section 98(2) of the Act, 1949, the general
provisions laid down in Sunderbhai Ambalal Desai vs. State of
Gujarat [JT (2002) 10 SC 80] cannot be pressed into service for
release of vehicle from the Court of Magistrate.
Bapalalsinh Dolatsinh Jadeja Versus State Of Gujarat- Special Criminal
Application No.8892 of 2017- Date :24/11/2017
( Prohibition Act)
Para 15. Section 22 of the Act lays down that no Court shall take
cognizance of any offence punishable under the Act or any rules made
thereunder except upon the complaint in writing made by a person
authorized in this behalf by the Central Government or the State
Government.

Para 20. A reading of the provisions of the Act, 1957 and the Gujarat
Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules,
2017 makes it clear, that any violation of section 4 of the Act, imposes
restriction on the mining operations in any area, except according to the
terms and conditions of the permit or license. It also imposes restriction on
transporting, storage of any mineral in violation of the provisions of the Act.

51
The violation of the provisions under section 4 of the Act are punishable
section 21 of the Act. Section 21(4-A) of the Act confers jurisdiction to the
Court, i.e., the Judicial Magistrate to confiscate the vehicle, whereas
section 22 of the Act provides the procedure for taking cognizance of the
offence under the Act.

Para 24. In any case, the very fact of seizure of vehicle would amount
to a prima facie decision by the authority under the Act and the
Rules, 2017 to have the matter adjudicated through the Court by filing
a complaint with the Judicial Magistrate. Otherwise, they can proceed
to seize the mines and minerals and impose penalties without dealing
with the vehicle.

Para 25. The power of the authority, therefore, with regard to the
transport vehicle, is limited to seizure and for production before the
court. They have no power to, thereafter, retain the vehicles.

Para 36. The power of the Court under Sec. 451, as regards custody
of movable property, is not arbitrary. Even though, such power is
discretionary, it has to be exercised in a judicial manner. Under this
section, the Magistrate has no jurisdiction to investigate and decide
the question of title or ownership of the rival claimants to the
property. Only the question of possession of the property at the time
the case started, has to be gone into and decided before passing an
order for the custody under this section. Sec. 452 deals with order for
disposal of property at conclusion of trial. Sec. 457 deals with
procedure by police, upon seizure of property.

Para 42 The sum total of the aforesaid discussion is that if a Special

Act embodies elaborate provisions about dealing with the seized
articles including the confiscation and such special provisions are
independent of the provisions of the Cr.P.C. and protected by Sec. 5
of the Cr. P.C., then the provision of sections 451 or 457 Cr.P.C., as
the case may be, would not apply in cases of seizure and
confiscation. For the purpose of explaining this, I have also taken
note of the provisions of the Forest Act and the Essential
Commodities Act. Both are the Special Acts. However, the fact that
the Mines & Minerals Act is a Special Act, by itself, is not sufficient to
exclude the applicability of the provisions of Section 451 of the
Cr.P.C. There are no provisions in the Mines & Minerals Act, 1957 or
the Rules, 2017 which are in conflict in any manner with the
provisions of the Cr.P.C.. I have discussed this aspect at length in
paras-20 to 25 of this Judgment in details.

52
 CrPC Sec. 452

Where there are conflicting claims of entitlement to the property, the

Magistrate may deal with them or, where it is found that the rival
claims need to be resolved after an evidentiary trial, relegate the
conflicting claimants to prove their rights and
entitlements
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEAL NO. 170 OF 2009
BHARAT SANCHAR NIGAM LIMITED Vs
SURYANARAYANAN & ANR.

Page No. 6…..In terms of sub-section (1) of Section 452, when an

inquiry or trial before a criminal court has been concluded, the court is
empowered to pass an appropriate order for its disposal by destruction,
confiscation or delivery to any person claiming to be entitled to the
possession thereof or otherwise. Entitlement postulates a right. The
function which the Court exercises under Section 452 is of a judicial
nature. In making that order, the court must undoubtedly have due
regard to the entitlement claimed by the person who seeks the
possession of the property.

We are unable to subscribe to the submission which has been

urged on behalf of the first respondent that when it makes an order under
Section 452, the court is merely required to determine the source from
which the property was seized. Indeed, if this construction were to be
placed, it would mean that the right of a person who claims title to the
property would be subordinate to the claim of a person from whose
possession the property was seized. A claim of title to the goods which
have been seized is a relevant consideration while passing an order
under Section 452. Where there are conflicting claims of entitlement
to the property, the Magistrate may deal with them or, where it is
found that the rival claims need to be resolved after an evidentiary
trial, relegate the conflicting claimants to prove their rights and
entitlements before a competent court.

Judgments on Gujarat Animal Preservation Act

Multani Hanifbhai Kalubhai versus

State of Gujarat & Anr-
2013 1 Crimes(SC) 250;
11. The courts below rejected the application filed by the appellant for
release of the vehicle under Section 451 of the Code on the ground that as
53
per the provisions of Section 6B(3) of the Amendment Act, the vehicle of
the appellant shall not be released before the expiry of six months from the
date of its seizure. On going through the relevant provisions, we are of the
view that the Courts below including the High Court grossly erred by
overlooking the correct position of law as stated in Section 6A(3). Sub-
section 1A of Section 5 stipulates the schedule of animals which are as
under: (a) a cow; (b) the calf of a cow, whether male or female and if male,
whether castrated or not; (c) a bull; (d) a bullock. It is clear from the above
description of animals that the buffalo calf does not fall under the list of
prohibited animals. We have already noted and it is not in dispute that the
vehicle in question was carrying 28 buffalo calves. Thus, Section 6B(3) of
the Amendment Act cannot be invoked in order to deny the claim of
release of the vehicle before the expiry of six months from the date of its
seizure.

12. It is true that Section 5(1) prohibits slaughtering of any animal

without a certificate in writing from the Competent Authority that the animal
is fit for slaughter. In other words, without a certificate from competent
authority, no animal could be slaughtered. Sub-section (1A) to Section 5
mandates that no certificate under sub-section (1) shall be granted in
respect of the abovementioned animals. In the said section, admittedly,
‘buffalo calf’ has not been mentioned as prohibited animal. In such
circumstance, the prohibition relating to release of vehicle before a period
of six months as mentioned in Section 6B(3) of the Amendment Act is not
applicable since the appellant was transporting 28 buffalo calves only. In
view of the same, it is not advisable to keep the seized vehicle in the police
station in open condition which is prone to natural decay on account of
weather conditions. In addition to the above interpretation, whatever be the
situation, it is of no use to keep the seized vehicle in the police station for a
long period.

13. In the light of the above conclusion, order dated 24.08.2012, passed
by the Judicial Magistrate, Gandhinagar in Criminal Misc. Application No. 9
of 2012, order dated 01.09.2012, passed by the District and Sessions
Judge, Gandhinagar in Criminal Revision Application No. 73 of 2012 and
order dated 25.09.2012, passed by the High Court in Special Criminal
Application No. 2755 of 2012 are set aside and the respondents are
directed to release the vehicle - Eicher Truck bearing Regn. No. GJ-9-Z-
3801 forthwith.

14. The appeal is allowed.

Other judgments of the Act

(1) Bariullah Muhammad Israikha Versus State of Gujarat- 2016 JX

54
 (Guj) 64- Justice A.G. Uraizee- Mudamal released
(2) Muhammadbhai Jalabhai Serasiya V/S State of Gujarat-2015 JX
(Guj) 378- Justice S.G. Shah – Interim custody to panjrapole- How
cruelty prima facie on live stock to be considered
(3) Shri Bhavnagar Panjrapole Thro Manager Brijesh Himatlal Shah V/S
State of Gujarat- Justice S.G. Shah 2015(2) GLH 492- Custody
given to panjarapole
(4) Abdulkadar MohamadAzam Sheikh Versus State of Gujarat- 2011
JX (Guj) 715- Justice M.R. Shah- Mudamal not released- cruelty
towards animals and birds well explained

55