An order staying criminal proceedings till the decision of a civil suit is not an interlocutory order and hence the bar under section 397(2) of the Code of Criminal Procedure does not apply.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 397(2) - STAY OF CRIMINAL PROCEEDINGS - ORDER STAYING CRIMINAL PROCEEDINGS TILL DECISION OF CIVIL SUIT - NOT AN INTERLOCUTORY ORDER - BAR UNDER SECTION 397(2) NOT APPLICABLE.
Fact of the Case:

The Bombay Municipal Corporation filed complaints against the respondent, a sweetmeat shop owner, under section 394 read with section 471 of the Bombay Municipal Corporation Act. The respondent filed an application before the Metropolitan Magistrate, praying for a stay of the criminal proceedings till the disposal of a civil suit. The Magistrate granted the stay. The Municipal Corporation filed revision petitions before the Sessions Court, which held that the revision applications were not maintainable in view of the bar under section 397(2) of the Code of Criminal Procedure.
Finding of the Court:

The High Court held that the order staying the criminal proceedings was not an interlocutory order and hence the bar under section 397(2) of the Code did not apply. The Court observed that such an order affected the substantive rights of the parties and disturbed the normal procedure of trial.
Issues: Whether the order staying the criminal proceedings was an interlocutory order and hence barred under section 397(2) of the Code of Criminal Procedure.
Ratio Decidendi: The Court held that the order staying the criminal proceedings was not an interlocutory order as it affected the substantive rights of the parties and disturbed the normal procedure of trial. The Court relied on the Supreme Court decisions in M.S. Shariff v. State of Madras and Amar Nath v. State of Haryana, as well as the Bombay High Court decision in Dhanrajmal & Co. Pvt. Ltd. v. State of Maharashtra.
Final Decision: The Court set aside the orders of the Sessions Court and directed it to hear and decide the revisions on merits.

JUDGMENT - DHARMADHIKARI C.S., J.: - As both these criminal writ petitions involve common questions of law and facts, they were heard together and are being disposed of by this common judgment.

2. The Bombay Municipal Corporation filed complaints against the respondent Suresh U. Gupta, a sweetmeat shop owner, under section 394 read with section 471 of the Bombay Municipal Corporation Act. On 21-1-1983 the opponent Gupta filed an application before the Metropolitan Magistrate, 39th Court, Vile Parle, Bombay praying for stay of the criminal proceedings till the disposal of the Bombay City Civil Court Suit No. 6927 of 1982. The learned Metropolitan Magistrate by his one line order, that is, “Heard, cases be stayed as prayed for”, stayed the criminal proceedings. Being aggrieved by this order the Municipal Corporation filed revision petitions before the Sessions Court bearing Criminal Revision Applications Nos. 278 and 275 of 1983. The Additional Sessions Judge, Bombay took a view that the said revision application are not maintainable in view of the provisions of section 397(2) of the Code of Criminal Procedure. It is these orders of the learned Sessions Judge, Bombay dated 11th July, 1984 which are challenged in these two criminal writ petitions. When the matter came up for hearing before the Single Judge of this Court, Masodkar, J., directed that the matter should be put up before the Division Bench in view of the two divergent opinions expressed by Shimpi, J. In (Criminal Revision Application No. 452 of 1975, decided on 9-12-1977)1, and Khatri, J., in (M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani ors.)2, 1984 Cri.L.J. 346. Therefore these criminal writ petitions are placed before us.

3. It is not necessary to make a detailed reference to the allegations made in the complaints, or defence of the accused, since in these petitions we are only called upon to decide as to whether the bar under section 397(2) of the Criminal Procedure Code will apply to such an order. After making a detailed reference to the provisions of section 309(1) of the Code and the decision of the Supreme Court in (M.S. Shariff another v. State of Maharashtra)3, A.I.R. 1954 S.C. 397 and the decision of this Court in (Dhanrajmal Co. Pvt. Ltd. v. State of Maharashtra)4, 72 Bom.L.R. 495 as well as the decision of the Supreme Court in (Amar Nath v. State of Haryana)5, A.I.R. 1977 S.C. 2185. Shimpi, J., in Criminal Revision Application No. 452 of 1975 held that the order staying criminal proceedings till the decision of civil suit is not merely an order of adjournment and, therefore, is an order of moment. This decision was not brought to the notice of Khatri, J., when M/s. Bush India Ltd.'s case was heard. Therefore without noticing the said judgment, Khatri, J., in M/s. Bush India Ltd. and another v. Lekharaj Pohoomal Kewalramani ors., held:

“9. There is substance in Shri Vashi's second contention also based on the bar to revision under section 397(2) of the Code. The preliminary objection was thrown out by the learned Judge, observing that order affected the rights of the complainant and as such was not interlocutory. Apparently the learned Judge has relied upon A.I.R. 1977 S.C. 2185, Amarnath v. State of Haryana. To attract this ruling the impugned order has to be “a matter of moment and must affect or adjudicate the rights of the accused or a particular aspect of the trial.”

It is difficult to see how an order of stay fulfils this requirement.

10. Now what is the test that will apply here? An order which terminates a proceeding will be obviously not an interlocutory order, inasmuch as it is a final one. However, the reverse of this proposition is not always true. In other word, in a situation an order which is not final, can also be a non-interlocutory order within the meaning of section 397(2). For example an order may reject the plea of the accused on a point which when accepted, will conclude the particular proceedings. In such a case, if

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