Bombay HC: Order rejecting police custody remand is not interlocutory and revision is maintainable against said order

The learned Judge of this Court in R. Shakuntala, finally came to conclusion that an order rejecting application for remand of the accused to judicial custody is a final order and not an interlocutory order. This will be applicable with equal force to the refusal of request for police custody also. As such, the order passed by the Magistrate rejecting request for police custody cannot be treated as interlocutory order because the police cannot repeat and make applications again and again for police custody after the application for police custody had been rejected once and particularly in view of the limitation under Section 167 Cr.P.C. that the police custody may be granted only during first 15 days after the arrest or detention and not thereafter. If such application for police custody is rejected, that order becomes final and the Investigating Officer is permanently deprived of seeking police custody of that accused for the purpose o further investigation, discovery, etc. even though the offence may be very serious.

By granting bail and refusing police custody of the accused, who were not in police custody even for a day, the learned Magistrate practically prohibited the investigating agency from making proper investigation to the case which, in fact, required in-depth investigation and which could not be possible without the police custody. Therefore, while the order refusing the police custody could be challenged under revisional jurisdiction under Section 397, the order granting bail could be cancelled by the superior courts, including the Sessions Court, by virtue of the powers under Section 439(2) Cr.P.C.

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 2785 of 2009 and Criminal Application No. 425 of 2010

Decided On: 22.07.2010

Ambarish Rangshahi Patnigere and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2011 Cri L J 515, MANU/MH/0806/2010.

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Supreme Court: Against which orders court can entertain criminal revision?

 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.{Para 16}

21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] 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.

24. The second reason why Amar Nath [Amar Nath v. State of Haryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be done indirectly. Therefore, when Section 397(2) CrPC prohibits interference in respect of interlocutory orders, Section 482 CrPC cannot be availed of to achieve the same objective. In other words, since Section 397(2) CrPC prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482 CrPC to set aside an interlocutory order. This is what this Court held : (SCC p. 140, para 3)

“3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.”

Supreme Court of India

Girish Kumar Suneja vs Cbi on 13 July, 2017

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Whether revision is maintainable against the order of framing of charge or discharge of accused?

 The correct position of law as laid down in Madhu Limaye

(supra), thus, is that orders framing charges or refusing

discharge are neither interlocutory nor final in nature and are

therefore not affected by the bar of Section 397 (2) of CrPC. That

apart, this Court in the above cited cases has unequivocally

acknowledged that the High Court is imbued with inherent

jurisdiction to prevent abuse of process or to secure ends of

justice having regard to the facts and circumstance of individual

cases. As a caveat it may be stated that the High Court, while

exercising its aforestated jurisdiction ought to be circumspect.

The discretion vested in the High Court is to be invoked carefully

and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For

example, when the contents of a complaint or the other

purported material on record is a brazen attempt to persecute an

innocent person, it becomes imperative upon the Court to

prevent the abuse of process of law. {Para 15}

16. Further, it is well settled that the trial court while considering

the discharge application is not to act as a mere post office. The

Court has to sift through the evidence in order to find out

whether there are sufficient grounds to try the suspect. The court

has to consider the broad probabilities, total effect of evidence

and documents produced and the basic infirmities appearing in

the case and so on. [Union of India v. Prafulla Kumar

Samal(1979) 3 SCC 4]. Likewise, the Court has sufficient discretion to order

further investigation in appropriate cases, if need be.

17. This brings us to the present case wherein the High Court has

not gone into the merits of the case and did not analyze the

case in light of the settled law referred to above.

18. The High Court has committed jurisdictional error by not

entertaining the revision petition on merits and overlooking the

fact that ‘discharge’ is a valuable right provided to the accused.

In line with the fact that the High Court and the court below

have not examined the fairness of criminal investigation in this

case and other related aspects concerning improvement of

witness statements, it is necessary for the High Court to

reconsider the entire matter and decide the revision petition

afresh. Accordingly, we set aside the impugned order dated

28.11.2018 and remand the case back to the High Court for its

reconsideration in accordance with law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.472 OF 2021

Sanjay Kumar Rai  Vs State of Uttar Pradesh & Anr. 

Author: Surya Kant, J:

DATED : 07.05.2021

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Whether court should pronounce final order without reasoned Judgment?

In this context, we may
refer to a passage from State of Punjab and others v.
Jagdev Singh Talwandi (1984) 1 SCC 596
 wherein expressing the opinion for
the Constitution Bench, Chandrachud, C.J. observed thus:-
“30. We would like to take this opportunity to point
out that serious difficulties arise on account of the
practice increasingly adopted by the High Courts, of
pronouncing the final order without a reasoned
judgment. It is desirable that the final order which
the High Court intends to pass should not be


announced until a reasoned judgment is ready for
pronouncement. Suppose, for example, that a final
order without a reasoned judgment is announced by
the High Court that a house shall be demolished, or
that the custody of a child shall be handed over to
one parent as against the other, or that a person
accused of a serious charge is acquitted, or that a
statute is unconstitutional or, as in the instant
case, that a detenu be released from detention. If
the object of passing such orders is to ensure
speedy compliance with them, that object is more
often defeated by the aggrieved party filing a special
leave petition in this Court against the order passed
by the High Court. That places this Court in a
predicament because, without the benefit of the
reasoning of the High Court, it is difficult for this
Court to allow the bare order to be implemented.
The result inevitably is that the operation of the
order passed by the High Court has to be stayed
pending delivery of the reasoned judgment.
31. It may be thought that such orders are passed
by this Court and therefore there is no reason why
the High Courts should not do the same. We would
like to point out respectfully that the orders passed
by this Court are final and no appeal lies against
them. The Supreme Court is the final court in the
hierarchy of our courts. Besides, orders without a
reasoned judgment are passed by this Court very
rarely, under exceptional circumstances. Orders
passed by the High Court are subject to the
appellate jurisdiction of this Court under Article 136
of the Constitution and other provisions of the
concerned statutes. We thought it necessary to
make these observations in order that a practice
which is not very desirable and which achieves no
useful purpose may not grow out of its present
infancy.”
18. We have reproduced the aforesaid two passages as the
larger Bench has made such observations with regard to
unreasoned judgments passed by the High Courts. The
learned Chief Justice had noted that the practice is not
desirable and does not achieve any useful purpose and it
should not grow out of its present infancy. Despite the said
observations, sometimes this Court comes across judgments
and orders where the High Courts have announced the result
of the case by stating “reasons to follow”. We can only reiterate
the observations of the Constitution Bench.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 32-33 OF 2017
(@ S.L.P. (Crl.) Nos. 7694-7695 of 2016)
Ajay Singh and Anr and Etc.
V
State of Chhattisgarh and Anr.
Dated:January 06, 2017
Citation:AIR 2017 SC 310,(2017)3 SCC 330

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Whether application refusing permission to call witnesses is interlocutory?

 Learned counsel for the respondents submits that refusal of the trial Court to issue summons to the witness of respondent has almost decided the fate of the complaint filed by the respondent against the applicant and others and, therefore, the order of the trial  Court directing closure of evidence of the prosecution cannot be said to be interlocutory. He also submits that sufficient opportunity was not given to the complainant to produce his witnesses and on this ground also, the impugned order cannot be seen to be illegal or arbitrary.

However, in the present case the facts are quite different. The nature of order has to be determined with reference to the impact it would have on the vital questions involved in a dispute and if it is found that the order would have the consequence of deciding the fate of the complaint filed by the complainant and acquittal of the accused would be a forgone conclusion because of the order, the order cannot be said to be interlocutory in nature and it would have to be termed as an order deciding finally the dispute between the parties.

Bombay High Court

Sunil S/O Brijlal Chanchlani vs State Of Maharashtra, Through ... on 9 March, 2015

Bench: S.B. Shukre

Citaion:2016 ALLMR(CRI)2351

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Whether Revision is maintainable against order passed under S 156(3) CRPC?

 Insofar as the question framed by us is concerned,
we find that there is a passing reference in paragraph
no.31 made by the Division Bench about availability of
several efficacious alternative statutory remedies under
the Criminal Procedure Code to challenge the order u/s
156(3). We think though it is obiter dicta, nevertheless
the same is binding on us as we respectively agree with
the said view, for the above reasons that the order u/s
156(3) of the Code not being an interlocutory order, but
being a final order in a proceeding u/s 156(3) of the
Code would certainly be revisable under the revisional
powers of the Sessions Court or the High Court. The
Division Bench in the case of B.S. Khatri v. State of

Maharashtra
& another (supra), however, clearly held that
the exercise of extraordinary jurisdiction under Article
226 of the Constitution should not be made for
considering the challenge to order u/s 156(3) of the Code
with which again we respectfully agree. We, however,
state that the bar to exercise extraordinary jurisdiction
under Article 226 of the Constitution is the one of selfimposed
rule. We, however, hold that the order u/s
156(3) of the Code not being an interlocutory order,
would obviously be revisable. We thus hold that the
order u/s 156(3) of the Code of Criminal Procedure, 1973,
is not an interlocutory order, but is a final order
terminating the proceeding u/s 156(3) of the Code and
that the revision u/s 397 or Section 401 of the Code
would lie.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.159 OF 2014

Avinash  Trimbakrao Dhondage,Vs  The State of Maharashtra,

CORAM:
A.B. CHAUDHARI &
INDIRA K. JAIN, JJ.

JUDGMENT PRONOUNCED ON : 21.10.2015
Citation; 2016CRLJ (NOC)102 Bom,2016 ALLMR(CRI)985

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Whether court can give police aid for enforcement of exparte order of Injunction?

Citation: AIR1999Ker383, ILR1999(3)Kerala455, 1999(2)KLJ208

IN THE HIGH COURT OF KERALA

W.A. No. 1607 of 1999

Decided On: 22.07.1999

Appellants: Adhikarath Valappil Kunhumuhammed alias Kunhippa and Ors.
Vs.
Respondent: Korath Illath Valappil Mammi alias Bava Haji and Ors.

Hon'ble Judges/Coram:
A.R. Lakshmanan, Actg. C.J. and S. Sankarasubban, J.

Constitution of India, Article 226--Police protection --Direction to give police protection on the basis of ex parte order of injunction--No notice to the opposite party--Direction is illegal.

The Appellants are Respondents 12, 13 and 14, in the Original Petition. The Original petition was filed by Respondents 1 to 3 for a direction to the police to grant adequate police protection to enjoy their properties without any obstruction from Respondent 4 to 14. It was alleged in the Original Petition that police refused to give police protection in spite of an order of ex parte injunction against the Respondents 4 to 14 and that they failed to discharge their statutory duties. When the Original Petition came up for orders the learned Judge without ordering notice to the Respondents straight away ordered police protection "if there is violation of the injunction order". The order is challenged in appeal. It was contended for the Appellants that taking advantage of the injunction order, the Petitioners in the Original Petition are proceeding further with the construction unauthorisedly and that the Appellants have entered appearance before the court below and contested the matter that the Petitioners have no title or possession of the property. Allowing the appeal;

Held: The basis for seeking police protection from this Court is the ex parte ad interim injunction order passed by the Munsiff. The facts would disclose that the Respondents 1 to 3 have obtained an order in the Original Petition disclosing the entire facts and circumstance. This Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the civil court and that only a final order passed under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure can be enforced with the assistance of the police. We, therefore, hold that the Judgment of the learned Single Judge ordering police protection in case of violation of the ex parte injunction order is not in order and by the impugned Judgment police authorities are given the right to decide whether there is a violation of the injunction order passed by the Civil Court. We also feel that courts shall be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which they would not be able to do even after final orders are passed by the Civil Court.

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