Bar Created Under Section 397 (2) Cr. P. C is not affected By the Orders Framing Charges or Refusing Discharge; SC

The Supreme Court in Criminal Appeal No. 472/2021 titled “Sanjay Kumar Rai Vs State of Utter Pardesh & Anr.”, held 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 the Code of Criminal Procedure.

What is bar placed in Section 397 in the Code Of Criminal Procedure, 1973

397. Calling for records to exercise powers of revision.

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

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

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

Legal Position

The Code of Criminal Procedure, 1973 does define an interlocutory order, but is an interim order, made during the preliminary stages of an enquiry or trial. However, in [“Amar Nath Vs State of Haryana”, 1977 SCC (Cri.) 585] the Supreme Court of India observed that;

“The term ‘interlocutory order’ in Section 397 (2) of the Code of Criminal Procedure, 1973 merely denotes orders of a purely interim or temporary nature which does not decide or touches the important rights of 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. Orders which are matters of moments 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.”

In [“Madhu Limaye Vs State of Maharashtra”, (1977) 4 SCC 551], the Supreme Court of India further observed 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, but, yet it may not be an interlocutory order pure or simple. Some kinds of order may fall in between the two. The bar in sub-section (2) of Section 397 of Code of Criminal Procedure, 1973 is not meant to be attracted to such kinds of interlocutory orders. They may not be final orders for the purposes, yet it would not be correct to characterize them as merely interlocutory orders within the meaning of Section 397 (2) of the Code of Criminal Procedure, 1973.

In [“V. C. Shukla Vs State through CBI”, 1980 (2) SCR 380], Supreme Court held that the term "interlocutory order" used in the Code of Criminal Procedure, 1973 has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and 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.

Not single general test for finality or a judgment or an order has so far been laid down. The reason probably is that a judgment or order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to part. However, generally speaking, a judgment or order which determines the principle matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application of reverse liberty to apply.

Very recently the Supreme Court in Criminal Appeal No. 472/2021 titled [“Sanjay Kumar Rai Vs State of Utter Pardesh & Anr.”], dfecided on 07.05.2021] held 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 the Code of Criminal Procedure.