PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF MAHARASHTRA DATE OF JUDGMENT31/10/1977 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. GOSWAMI, P.K. DESAI, D.A. CITATION: 1978 AIR 47 1978 SCR (1) 749 1977 SCC (4) 551 CITATOR INFO : F 1980 SC 258 (10) E 1980 SC 962 (6,21,23,34,44,67,103,105,114) F 1983 SC 67 (5) RF 1992 SC 604 (97) ACT: Code of Criminal Procedure, ( Act 11 1974), 1973 Ss. 397 (2) & 482-Scope of-Whether the bar in s. 397(2) refers to revisional powers of <ORG> in all cases or only refers to revisional powers against interlocutory orders. HEADNOTE: The appellant was prosecuted for having made statements dafamatory to the then Law Minister of the Government of Maharashtra. The Government decided to prosecute the appellant for an offence tinder Section 500 of Indian Penal Code on the ground that the Law Minister was defamed in respect of his conduct in the discharge of his public functions. Sanction was purported to have been accorded under section 199(4)(a) . Thereafter, the public prosecutor filed a complaint in the court of the Sessions Judge. Process was issued against the appellant upon the said complaint. The appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The appellant contended that the allegations were made against Shri <NAME> in relation to what he had done in his personal capacity and not in his capacity as a Minister. The appellant challenged the jurisdiction of the court on some other grounds, also challenging the validity of the sanction. The Sessions Judge rejected the contentions of the appellant and framed a charge against the appellant under section 500 of the Penal Code. The appellant, thereupon, filed a revision application in <ORG>. <ORG> without going into the merits held that the revision application was not maintainable in view of provisions of section 397(2) . Allowing the appeal by special leave, HELD : 1. On a plain reading of section 482 it would follow that nothing in the code which would include section 397(2) shall be deemed to limit or affect the inherent powers of <ORG>. However, it cannot be said that the said bar is not to operate in the exercise of the inherent power at all because it would be setting at naught one of the limitation imposed upon the exercise of revisional powers. A happy and harmonious solution would be to say that the bar provided in section 397(2) operates only in, exercise of the revisional power of <ORG> meaning thereby that <ORG> will have no power of revision in relation to any interlocutory order. The inherent power would come into play there being no other provision in the code for the redress of the grievance of the aggrieved party. in case the impugned order 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 <ORG> is absolutely necessary, then nothing contained in section 397(2) can limit of affect the exercise of the inherent power by <ORG>. Such cases would be few and far between. <ORG> must exercise the inherent power very sparingly. [753 H; 754 A-D] <NAME> and <NAME>,. v. State of Haryana & Anr. Crl. A. No. 124 of 1977 decided on 29th July, 1977; modified & reiterated. <CITATION> ,  3 S.C.R. 388, referred to. 2. Even if it is assumed that an order of the <ORG> taking cognisance or issuing process is an interlocutory order, the bar created by section 397(2) will not prevent <ORG> from exercising its inherent power for stopping the criminal proceeding as early as possible instead of harassing the accused upto the end. [754 E] 3. Ordinarily and generally the expression "Interlocutory Order" has been understood and taken to mean as a converse of the term final order. [735 H] 750 S. Kuppuswami Rao v. The King,  Federal <ORG> Saleman V. Warner, (1881) 1 C.B. 734 referred to. The strict test for interpreting the. words 'Interlocutory Order' cannot be applied while interpreting it as appearing in section 397(2) .. The interpretation that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so, it would render almost nugatory the revisional power of the Sessions <ORG> or High <ORG> conferred by section 397(1) . Although the words occurring in a Particular statute are plain and unambiguous they have to be interpreted in a 'manner which would fit in the context of the other provisions of the Statute and bring about the real intention of the legislature. There may be an order passed during the course of a proceeding which may be not final but yet it may not be interlocutory order pure or simple. Some kinds of orders may fall in between the two. The bar of section 397(2) is not meant to be attracted to such kind of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution yet it would not be correct to characterise them as merely interlocutory within the meaning of section 397(2) . [756 F-H, 757 A--F, 759 <CITATION> and Sons, (1933) 60 Indian Appeals, 76, <CITATION> ., A.I.R. 1970 S.C. 406 and <CITATION> .  2 S.C.R. 160 and <CITATION> .,  2 S.C.R. 405 referred to. 4.If a complaint is dismissed under section 203 or 204(4) or the court holds the proceedings to be void or discharge the accused, a revision to <ORG> at the instance of the complainant or the prosecutor would be competent. It. therefore, does not stand to reason why an accused will have no remedy to move <ORG> in revision or invoke its inherent power for the quashing of criminal proceedings initiated on a complaint or otherwise. [760 C-E] The court allowed the appeal, set aside <ORG> Judgment and remitted the case back to <ORG> to dispose of on merits. 1760 F] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 81 of 1977.

Appeal by Special Leave from the Judgment and Order dated 10-1 1-75 of <ORG> in Criminal Revision Application No.: 180 of 1975.

<NAME> and Mrs. <NAME> for the appellant.

<NAME> and <NAME> for the Respondent. The Judgment of the Court was delivered by <NAME> is an appeal by special leave from the order of <ORG> rejecting the application in revision filed by the appellant under section 397(1) of the Code of Criminal Procedure, 1973 hereinafter to be referred to as the 1973 Code or the new Code, on the ground that it was not maintainable in view of the provision contained in subsection (2) of section 397 . <ORG> has not gone into its merits.

It is not necessary to state the facts of the case in any detail for the disposal of. this appeal. A bare skeleton of them will suffice. In a press conference held at New Delhi on the 27th September, 1974 the appellant is said to have made certain statements and handed over a press hand-out" containing allegedly some defamatory statements concerning Shri <NAME>, the then Law Minister of the Government of Maharashtra. The said statements were published in various newspapers. The State Government decided to prosecute the appellant for an offence under section 500 of the Indian Penal Code as it was of the view that the Law Minister was defamed in respect of his conduct in the discharge of his public functions. Sanction in accordance with section 199 (4) (a) of the 1973 Code was purported to have been accorded by the State Government. Thereupon the Public Prosecutor filed a complaint in <ORG>, Greater Bombay. Cognizance of the offence alleged to have been committed by the appellant was taken by <ORG> without the case being committed to it as permissible under sub-section (2) of section 199 . Process was issued against the appellant upon the said complaint.

The Chief Secretary to <ORG> was examined on the 17th February, 1975 as a witness in <ORG> to prove the sanction order of the State Government. Thereafter on tile 24th February, 1975 <NAME>, the appellant, filed an application to dismiss the complaint on the ground that the <ORG> had no jurisdiction to entertain the complaint. The stand taken on behalf of the appellant was that allegations were made against Shri <NAME> in relation to what he had done in his personal capacity and not in his capacity of discharging his functions as a Minister. Chiefly on that ground and on some others, the jurisdiction of the <ORG> to proceed with the trial was challenged by the appellant.

The appellant raised three contentions in <ORG> and later in <ORG> assailing the validity and the legality of the trial in question. They are :-

(1) That even assuming the allegations made against <NAME> were defamatory, they were not in respect of his conduct in the discharge of his public functions and hence the aggrieved person could file a complaint in the Court of a competent Magistrate who after taking cognizance could try the case or commit it to <ORG> if so warranted in law. <ORG> could not take cognizance without the committal of the case to it.

(2) The sanction given was bad in as much as it was not given by the State Government but was given by the Chief Secretary. (3) The Chief Secretary had not applied his mind to the entire conspectus of the facts and had given the sanction in a mechanical manner. The sanction was bad on that account too.

The Sessions Judge rejected all these contentions and framed a charge against the appellant under section 500 of the Penal Code. The appellant, thereupon, challenged- the order of the Sessions Judge in the revision filed by him in <ORG>. As already 'stated, without entering into the merits of any of the contentions raised by the appellant, it upheld the preliminary objection as to the maintainability of the revision application. Hence this appeal.

The point which falls for determination in this appeal is squarely covered by a decision of this Court to which one of us (<ORG> was a party in <CITATION> on a careful consideration of the matter and on hearing learned counsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned judges of this Court in <NAME> case but in a somewhat modified and modulated form. In <NAME> case, as in this, the order of the <ORG> issuing process against the accused was challenged and <ORG> was asked to quash the criminal proceeding either in exercise of its inherent power under section 482 of the 1973 Code corresponding to section 561A of' the Code of Criminal Procedure, 1898-hereinafter called the 1898 Code or the old Code, or under section 397(1) of the new Code corresponding to section 435 of the old Code. Two points were decided in <NAME> case in the following terms :-

(1) "While we fully agree with-the view taken by the learned Judge that where a revision to <ORG> against the order of the Subordinate Judge is expressly barred under sub-s. (2) of s. 397 of the 1973 Code the inherent powers contained in s. 482 would not be available to defeat the bar contained in s. 397(2) ."

(2 The impugned order of the Magistrate, however, was not an interlocutory order.

For the reasons stated hereinafter we think that the statement of the law apropos point no. 1 is not quite accurate and needs some modulation. But we are-going to reaffirm the decision of the <ORG> on the second point. Under section 435 of the 1898 Code the High <ORG> had the power to "call for and examine the record of any proceeding before any inferior Criminal <ORG> 'situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. and as to the regularity of any proceedings of such inferior <ORG>", and then to pass the necessary orders in accordance with the law engrafted in any of the sections following section 435 . Apart from the revisional power, the High <ORG> possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial 'justice for the administration of which alone <ORG>s exist. In express language this power was recognized and saved in section 561A of the old Code. Under section 397(1) of the 1973 Code, revisional power has been conferred on the High <ORG> in terms which are identical to those found in section 435 of the 1898 Code. Similar is the position apropos the inherent powers of the High <ORG>. We may read the language (1) Criminal Appeal No. 124 of 1977 decided on the 29th July, 1977.

of section 482 (corresponding to section 561A of the old Code) of the, 1973 Code. It says "Nothing in this Code shall be deemed to limit or affect the inherent powers of <ORG> 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 <ORG> or otherwise to secure the ends of justice."

At the outset the following principles may be noticed in relation to the exercise of the inherent power of <ORG> which have been followed ordinarily and generally, almost invariably, barring a few exceptions :-

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party ;

(2) That it should be exercised very sparingly to prevent abuse of process of any <ORG> or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code .

In most of the cases decided during several decades the inherent power of <ORG> has been invoked for the quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of <ORG> has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the <ORG> had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in <ORG>. In the background aforesaid we proceed to examine as to what is the correct position of law after the introduc- tion of a provision like sub section (2) of section 397 in, the 1973 Code.

As pointed out in <NAME> case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of <ORG> was resorted to in relation to inter- locutory orders delaying the final disposal of the proceedings. The <ORG> in its wisdom decided to check this delay by introducing sub-section (2), in section 397 . On the one hand, a bar has been put in the way of <ORG> (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482 , however, it would follow that nothing in the Code , which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of <ORG>". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. 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 sub-section (2) of section 397 operates only in exercise of the revisional power of <ORG>, meaning thereby that <ORG> 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 <ORG> under the 1898 Code. <ORG> 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 <ORG> or for the purpose of securing the ends of justice interference by <ORG> is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by <ORG>. But such cases would be few and far between. The High <ORG> must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of, a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the <ORG> taking cognizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of <ORG> cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the <ORG> and/or to secure, the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High <ORG> can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of <ORG> in accordance with section 482 of the 1973 Code. even assuming. although not accepting, that invoking the revisional power of <ORG> is impermissible. <CITATION> (1) Gajendragadkar J.. as he then was, delivering the judgment of this <ORG> pointed out, if we may say so with respect, very succinctly the scope of the inherent power of <ORG> for the purpose of quashing a criminal proceeding. Says the learned Judge at pages 392-93 :--

"Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code , and <ORG> would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possi-

(1) [1960] 3 SCR. 388.

ble, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for <ORG> to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding <ORG> would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for <ORG> to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of <ORG> can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to. prove the charge'. In dealing with this class of cases it is important to bear in- mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may not support the accusation in question. In exercising its jurisdiction under s. 561-A <ORG> would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke <ORG>'s inherent Jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained."

We think the law as stated above is not affected by section 397(2) of the new Code. It still holds good in accordance with '. section 482 .

Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606 "....... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of two words must therefore be considered separately in relation to the particular purpose for which it is required." In para 1607 it is said :

"In general a judgment or order which determines the principal matter in question is termed "final"."

In para 1608 at pages 744 and 745 we find the words "An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the- final judgment are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."

In <NAME> v. <NAME>, delivering the judgment of the <ORG> has referred to some English decisions at pages 185 and 186. Lord <NAME> said in <NAME> v. Warner(2) "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of <NAME> L. J. and <NAME> Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High <ORG> (at that time, there was no bar like section 397 (2) was not a "final order" within the meaning of section 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words 'interlocutory order" occurring in section 397(2) , then the order taking cognizance of an offence by a <ORG>, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High <ORG> can be invoked for quashing such a criminal proceeding. 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 <ORG> or the High <ORG> conferred on it by section 397(1) . On such a 'strict interpretation,.

(1)[1947] <ORG>, 180.

(2) [1891] 1 Q.B. 734.

only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the <ORG> when it retained the revisional power of <ORG> in terms identical to the one in the, 1898 Code. In what cases then <ORG> will examine the legality or the propriety of an order or the legality of any proceeding of an inferior Criminal court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies ? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, <ORG> v. <NAME>) and <CITATION> ( 2) that although the word occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of <ORG> and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. 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 <NAME>'s case (supra), but, yet it may not be an 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 sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of section 397(2) . It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. 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.

In passing, for the sake of explaining ourselves, we may refer to what has been said by <NAME> in <NAME>'s case at page 187 by quoting a few words from Sir <NAME> in the case of <CITATION> (3). The learned law Lord said with reference to the order under consideration in that case : "The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but it left the suit alive, and provided for its trial in the ordinary way. Many a time a question (1) [1876-77] 2 A.C. 743.

(3) [1933] 60 Indian Appeals, 76.

(2) [1957] S.C.R. 930.

arose in India as to what is the exact meaning of the phrase "case decided" occurring in section 1 1 5 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. <CITATION> .(1) it has been pointed out :

"A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy :"

We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133 (1) of the Constitution, yet it will not be purely or simply of an interlocutory character. Suppose for example, a defendant raises the plea of jurisdiction of a particular <ORG> to try the suit or the bar of limitation and succeeds, then the action is determined finally in that <ORG>. But if the point is decided against him the suit proceeds. Of course, in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case, and that it may not be possible to decide it under Order 14 Rule 2 of the Code of Civil Procedure as I preliminary point of law. But, if it is a pure point of law and is decided one way or the other, then the order deciding such a point may not be interlocutory, albeit-may not be final either. Surely, it will be a case decided, as pointed out by this <ORG> in some decisions, within the meaning of section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression 'interlocutory order' occurring in section 397(2) .

In <NAME> case, reference has been made to the decision of this Court in <CITATION> (2) After an enquiry under section 476 of the 1898 Code an order was made directing the filing of a complaint against the appellant. It was affirmed by <ORG>. The matter came to this Court on grant of a certificate under Article 134(1) (c). A question arose whether the order was a "final order" within the meaning of the said constitutional provision. <NAME>, delivering the judgment on behalf of himself and two other learned Judges, said that it was a final order. The dissenting judgment was given by <NAME>, on behalf of himself find one other learned Judge. In the majority decision four tests were culled out from some English decisions. 'they are found enumerated at page 688. One of the tests is "If the order in question is reversed would the action have to go on ?" Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. Applying the test of <NAME> case such an order will (1) A. T. R. 1970 S.C. 406.

(2) [1968] 2 S.C.R. 685.

<NAME>

not be a final order. But applying the fourth test noted at page 688 in <NAME> case it would be a final order. The real point of distinction, however, is to be found at page 693 in the judgment of <NAME>, J.The passage runs thus :

"As observed in <CITATION> - 3 S.C.R. 198 the finality of that order was not to be judged by correlating that order with the controversy in the complaint,viz. whether the appellant had committed the offence charged against him therein. The fact that that controversy still remained alive is irrelevant."

The majority view is based upon the distinction pointed out in the above passage and concluding that it is a final order within the meaning of Article 134(1) (c). While <NAME> said at page 695 : "It is merely a preliminary step in the prosecution and therefore an interlocutory orders." Even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in <NAME> case, in our judgment, undoubtedly, an order directing the filing of a complaint after enquiry made under a provision of the 1973 Code, similar to section 476 of the 1898 Code will not be an interlocutory order within the meaning of ' section 397(2) . The order will be clearly revisable by <ORG>. We must, however, hasten to add that the majority decision in <NAME> case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in <NAME> case. Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, 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) .

We may also refer to the decision of this <ORG> in <CITATION> .(1) that an order made in a criminal proceeding against a person who is not a party to the enquiry or trial and which adversely affected him is not an interlocutory order within the meaning of section 397 (2). Referring to a passage from the decision of this <ORG> in <NAME> case- the passage which is to be found in Halsbury's Laws of England, Volume 22, it has been said by <NAME>, delivering the judgment of the <ORG>, at page 164 :

"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."

As already mentioned, the view expressed in <NAME> case may be open to debate or difference. One such example is to be found in the (1) [1977] 2 S.C.R. 160.

decision of this Court in <CITATION> .(1) wherein it was held that an order of <ORG> setting aside an ex-parte decree in the suit and restoring the suit to the file of <ORG> is not a final order within the meaning of Article

133. It is to be noticed that if <ORG> would have refused to set aside the ex-parte decree, the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in <NAME> case, such an order would have been a final order. We are, however, not under any necessity to enter into this controversial arena. In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of sub-section (2) of section 397 of the 1973 Code. Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test laid down in <NAME> case 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 section 203 or under section 204(4) , or the <ORG> holds the proceeding to be void or discharges the accused, a revision to <ORG> at the instance of the complainant or the prosecutor would be competent, otherwise it will make section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move <ORG> 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 'section

398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move <ORG> 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 reasonable view expressed by us above. For the reasons stated above, we allow this appeal, set aside the judgment and order of <ORG> and remit the case back to it to dispose of the appellant's 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.

P.H.P. Appeal allowed. (1) [1971] 2 S.C.R. 504.


PETITIONER: <NAME> Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 28/08/1962 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS CITATION: 1963 AIR 550 1963 SCR (3) 800 CITATOR INFO : R 1972 SC2284 (19) RF 1986 SC2045 (3) ACT: Cirminal Trial-Public Servant accepting valuable things for securing export permit-'Subordinate', Meaning of-If means functionally subordinate--Indian Penal Code , 1860 (Act 45 of 1860), s. 165 . HEADNOTE: The word 'subordinate' used without any qualification in s. 165 of the Indian Penal Code indicates that the <ORG> intended to include within its ambit also such subordinates as had no connection with the functions with which the proceeding or business was concerned. That word cannot be read as functionally subordinate' so as to defeat the inten- tion and policy of the <ORG>. Consequently where an Assistant Controller of Imports was prosecuted for accepting valuable things for helping an applicant, who had appealed to the joint Chief Controller of Imports and Exports. to secure a permit to export goods and was convicted under s. 165 of the Indian Penal Code by the special Judge and such conviction was affirmed by <ORG> and the contention on appeal to this Court was that, although the appellant might be administratively subordinate to the joint Chief Controller of Imports and Exports, he was not functionally so, having nothing to do with export permits, and was not, therefore, liable under the section. Held, that the appellant was subordinate to the joint Chief Controller of Imports and Exports within the meaning of the section and had been rightly convicted. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 116 of 1961.

Appeal from the judgment and order dated December 14, 1960 of <ORG> in Criminal Appeal No. 933 of 1959.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME> Solicitor General of India, <NAME>, <NAME>, <NAME> and P. <NAME>. Menon, for the respondent.

1962. August 28. The Judgement of the Court was delivered by <NAME>, J. The appellant who was the Assistant Controller of Imports in the office of the Joint Chief Controller of Imports and Exports, Madras, was tried by the Special judge, Madras on three charges-one under section 161 of the Indian Penal Code, another under s. 5 (1) (d) read with s. 5 (2) of the Prevention of Corruption Act and the third-which was added later-under s. 165 of the Indian Penal Code. He was acquitted of the first two charges but was convicted of an offence under s. 165 of the Indian Penal Code and sentenced to rigorous imprisonment for one year. He appealed to <ORG>; but <ORG> dismissed the appeal and affirmed the order of conviction, but reduced the sentence to that of fine of Rs. 400/- in default rigorous imprisonment for three months. <ORG> has however granted a certificate under Article 134 (1) (c) of the constitution that this was a fit case for appeal to this Court. On the basis of that certificate this appeal has been filed.

This prosecution case is that one <NAME> (who has been examined as prosecution witness No. 8) a merchant having export business in onions, chillies and groundnuts made on January 21, 1958, an application for export of chillies. He was informed by a letter dated March 5, 1958, that the application had been rejected. This letter was purported to be signed by the Assistant Controller of Exports for the Joint Chief Controller of Imports and Exports. <NAME> (prosecution witness No. 1) who bad been acting on behalf of <ORG> in this matter then sought the assistance of this appellant for getting a permit for <ORG>. When he met the appellant later the same evening the appellant told him that an appeal would have to be preferred against the rejection order to the Joint Chief Controller of Imports and Exports, <NAME>. The appellant also proposed that if he was given two bags of cement and Rs. 50/-he would use his influence and help him to get him the permit. <NAME> agreed and the appellant gave <NAME> a sheet of paper stating the address to which the cement was to be sent. On the next day the memorandum of appeal was sent by registered post to <NAME>, the Joint Chief Controller. The same day <NAME> saw the Deputy Superintendent, <ORG>, and gave him a complaint in writing mentioning all the facts. A trap was thereafter laid with a view to catch the appellant in the actual act of accepting the bribe. On the evening of April 3, 1958, <NAME> went to the house of the appellant with two cement bags which had been marked by putting attested cards inside the bags and Rs. 50/in currency notes the number of which were noted by the Deputy Superintendent of Police. The appellant accepted the cement bags and the money from <NAME>, The two cement bags were put in a. room of the building as directed by the appellant. Immediately after this the Deputy Superintendent of Police, who had been waiting according to the arrangement a little distance away from the house came into the cause on getting the pre- arranged signal from <NAME>. He revealed his identity to the appellant and asked him to produce the money and cement bags. The accused then took him upstairs and opened an Almirah with his own keys and produced from inside the Almirah the very notes of which the number had been taken by the Deputy Superintendent of Police. The cement bags with the marks inside were also found down-stairs.

The accused pleaded not guilty. He admits the recovery of the cement bags and the currency notes from his house but pleads that neither of these have been given to him and that the notes were found on the table and the cement bags were in the hall nearby; and these had been kept in his house without his knowledge or consent by <NAME> who wanted to make up a false case against him. According to him the whole story of his being approached by <NAME> or his asking for cement bags or money, or accepting them, is entirely false.

The Special Judge as also <ORG> accepted the prosecution evidence in these matters as true and rejected the defence version and Mr. <NAME> has rightly not tried to challenge before us the findings of facts. His principal contention in support of the appeal is that assuming the findings to be true, an offence under s. 165 , Indian Penal Code had not been established. This contention is based mainly on the fact that the appellant was Assistant Controller of Imports only and had no connection with the issue of export permits. According to the learned Counsel he was not therefore "subordinate" to the Joint Chief Cont- roller of Imports and Exports to whom the appeal petition had been filed and consequently his acceptance of cement bags from Arumugam did not amount to an offence under section 165 of the Indian Penal Code. Section 165 of the Indian Penal Code runs thus:-

"165. Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing without consideration, or for a consideration which knows to be inadequate from any person whom he knows to have been or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having arty connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

What has been proved in this case is ; (1) that the appellant, a public servant, accepted some valuable things from Arumugam without consideration. (2) Arumugam was concerned in an appeal against an order rejecting an application for export licence. (3) this proceeding bad connection with the official functions of the Joint Chief Controller of Imports and Exports who was a public servant. (4) The appellant knew that Arumugam was concerned in this proceeding having connection with the official function of the Joint Chief Controller of Imports and Exports. (5) The appellant was in respect of his official position subordinate to the Joint Chief Controller of Imports and Exports. It may be mentioned that it is not disputed that at the relevant time, viz., March, 1958, the accused was the Assistant Controller of Imports only and had nothing to do with export permits.

All the ingredients of an offence under s.165, Indian Penal Code , appear therefore to have been proved prima facie. Mr. <NAME>'s contention is that the fifth fact mentioned above, viz., that the appellant was in respect of his official position 'subordinate" to the Joint Chief Controller of Imports and Export is not sufficient to establish his "subordination" to the Joint Chief Controller of Imports and Exports within the meaning of s. 165 . Subordination of public servants to other public servants is a well known and inevitable feature of public administration. And, when a question arises in any case whether a public servant A is a subordinate to public servant B it presents little difficulty. Thus, in that branch of the <ORG>'s public administration which deals with regulation of Imports into and exports from India, one would state without difficulty that an Assistant Controller of Imports is "subordinate" to the Joint Chief Controller of Imports and Exports; so also the Assistant Controller of Exports is subordinate to the Joint Chief Controller of Imports and Exports; but the Assistant Controller of Exports is not subordinate to the Assistant Controller of Imports; nor is the Assistant Controller of Import subordinate to the Assistant Controller of Exports. According to the learned Counsel, in s. 165 the word "subordinate" should be interpreted as "functionally subordinate". He contends that while the appellant was administratively subordinate to the Joint Chief Controller of Imports and Exports he was not "functionally subordinate" to that officer; as Assistant Controller of Imports, he had nothing to do with the matter of appeal against the rejection of the application for exports, so, he was not "subordinate" to the Joint Chief Controller, within the meaning of the section. The use of the words "functionally subordinate" does not appear to be very happy; as in every case of administrative subordination there is also subordination in respect of some functions at least. What the learned Counsel really means by his argument is that "subordinate" in the section means "subordinate in respect of those very official functions with which the business or transaction has connection." In support of his arguments he has drawn our attention to the provisions of a. 161, s. 162 and s. 163 of the Indian Penal Code and he points out that s. 161 makes punishable the taking by a public servant of gratification in respect of his officials act or his official functions; s. 162 makes punishable the taking of gratification by any person for inducing by corrupt or illegal means a public servant to do or not to do some thing in connection with his official functions; s. 163 makes punishable the taking of gratification by any person for inducing by the exercise of personal influence a public servant to do or not to do something in connection with his officials function. Section 164 it may be mentioned makes punishable the abetment of offences under s. 162 and 163 . In this context, the learned Counsel argues, the words in s. 165 should be so interpreted as to make punishable only such taking of gratification by a public servant as has in some way connection with his own official functions, and so he argues "subordinate" in the section should be interpreted as suggested by him. To a emphasise his point he gave this illustration , X the Collector of a District is dealing with a matter of assessment of revenue on A's application. Y a office Peon of a department under the Collector which has nothing to do with revenue matters accepts money from A knowing that A has such business with X; Y will then be committing an offence under is. 165 even though Y has no connection whatsoever with the functions of X in respect of A's application.

It will perhaps not often happen that Y will have an opportunity of accepting money from A when he has not even a plausible chance of doing something for A in connection with the application. But, assuming that he has that opportunity and does accept the money as stated in the illustration above, we cannot see what untoward consequences will ensue if Y's conduct is made punishable under s. 165 . It has to be noticed that s. 165 has been so worded as to cover cases of corruption which do not come within s. 161 or a. 162 or s. 163 . When with that intention the legislature has used the word "subordinate" in s. 165 without any limitation there is no justification for reading into the word the limitation suggested by the learned Counsel by the words "in respect of those very functions". It is plain that the interpretation suggested by Mr. <NAME> needs the addition of some words in the section, and that is clearly not permissible. By the use of the word "subordinate" without any qualifying words, the legislature has expressed its legislative intention of making punishable such subordinates also who have no connection with the function with which the business or transaction is concerned. To limit the meaning of "subordinate" in the section as suggested by the learned Counsel would be defeating that legislative intention and laying down a different legislative policy. This the <ORG> has no power to do. The argument that "subordinate" means something-more than "administratively subordinate" must therefore be rejected, The appellant has therefore rightly been held to be "Subordinate" to the Joint Chief Controller, even though the appellant had no functions to discharge in connection with the appeal before the Joint Chief Controller of Imports and Exports.

Mr. <NAME> then wanted to argue that the facts and circumstances of the case showed that <NAME> was a police informer and that he was really not concerned in the appeal before <NAME>. Therefore, he points out, it would be reasonable to hold that no offence under s. 165 had been committed by his client. We find however that <ORG> granted the certificate only on the ground that the question raised by the Counsel as regards the interpretation of the word "subordinate" in the section was a substantial question of law, which was not covered by any specific authority and was also a question of public importance. In view of this we do not think it right to investigate the further question sought to be raised by Mr. <NAME> in this case and we have not allowed him to argue that matter.

We think it proper to add that we have not been able to appreciate why <ORG> thought it necessary to reduce the sentence imposed by <ORG>.

The appeal is accordingly dismissed.

Appeal dismissed.