Reference And Revision
The term "interlocutory order" was explained in light of the Apex Court's
verdict in
Amarnath v. State of Haryana. The term "interlocutory order"
in Section 397(2) has been used in a restricted sense and not in any broad or
artistic sense. An interlocutory order under Section 397 is one that does not
decide or touch upon the important rights and liabilities of the parties. Any
order that substantially affects the rights of the parties or decides certain
rights of the parties cannot be considered an interlocutory order that bars a
revision application to the High Court.
An order regarding the interim custody of a valuable article decides and touches
upon very important rights of the parties. Any party who was denied even interim
possession would be substantially and adversely affected by it and would be
entitled to invoke the revisional jurisdiction of the High Court. This is
because, by such an order, the High Court is affecting and adjudicating
important rights of the parties concerning the particular aspect, and such an
order cannot be said to be an interlocutory order as contemplated by Section
397(2) of the Code of Criminal Procedure.
If a practical view of Section 451 of the Code of Criminal Procedure is taken,
considering the prevailing situation of arrears of cases, it cannot be said that
an order of interim custody is purely interlocutory. Cases are pending for over
a decade, and if, during inquiries or trials, an order for interim custody is
passed against a person who is lawfully entitled to claim possession of such
property, their rights can be vitally affected by orders passed against them.
Hence, in this view, it cannot be said that such an order is interlocutory or
interim, operating during the pendency of the inquiry, investigation, or trial.
Section 451 of the Criminal Procedure Code also empowers the Court to pass such
orders as are otherwise expedient, including the sale of such property or orders
for the protection of such property. After such an order, the property must
follow in the hands of the purchaser, and consequently, it cannot be said to be
an order that is not revisable.
The Supreme Court, in
Madhu Limaye v. State of Maharashtra, considered
the bar imposed under Section 397(2) of the Criminal Procedure Code regarding
entertaining a revision against interlocutory orders and also the inherent
powers of the High Court under Section 482 of the Code of Criminal Procedure.
The Apex Court observed that "on a plain reading of Section 397, however, it
would follow that nothing contained in the Code, including sub-section (2) of
Section 397, shall be deemed to limit or affect the inherent powers of the High
Court." The Apex Court further observed that "if we were to say that the said
bar is not to operate in the exercise of inherent power at all, it would be
setting at naught one of the limitations imposed upon the exercise of revisional
power."
A practical solution to this issue would be to say that the bar provided in
sub-section (2) of Section 397 operates only in the exercise of the revisional
power of the High Court, meaning the High Court will have no power of revision
concerning any interlocutory order. Then, in accordance with the principles
enunciated above, the inherent power would come into play, as there would be no
other provision in the Code for the redress of the grievance of the aggrieved
party.
However, if the order assailed was purely interlocutory in nature, which could
be corrected in the exercise of the revisional power of the High Court under the
1898 Code, the High Court would refuse to exercise its inherent power.
But, in cases where the impugned order clearly brings about a situation that is
an abuse of the process of the Court or where interference by the High Court is
absolutely necessary to secure the ends of justice, nothing in Section 397(2) of
the Criminal Procedure Code can limit or affect the exercise of the inherent
power by the High Court. However, such cases would be rare, and the High Court
must exercise its inherent power very sparingly. One such case would be the
desirability of quashing a criminal proceeding initiated illegally, vexatiously,
or without jurisdiction.
From the above verdict of the Apex Court, the ratio seems to be that if under
the old Code of Criminal Procedure, an order could be corrected in the exercise
of revisional jurisdiction, it should be corrected in revision by the High
Court. The High Court should not exercise its inherent power under Section 482
of the Criminal Procedure Code.
However, under the new Code, since a bar has been imposed on entertaining
revisions against interlocutory orders, this bar will not apply in the exercise
of the inherent power of the High Court under Section 482 of the Criminal
Procedure Code. But for exercising such powers, the Apex Court has laid down
guidelines, stating that such power should be exercised sparingly by the High
Court, with examples provided.
End Notes:
- State of Gujarat v. Manoj Kumar, 2001 Cri LJ 1223 at 1225 (Guj).
- AIR 1978 SC 47: 1978 Cri LJ 165.
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