An order framing a charge is not an interlocutory order within the meaning of Section 397(2) of the Code of Criminal Procedure, 1973.

GADGIL, J. :- This matter is placed before us as the following question has been referred by Mr. Justice Pratap for decision by a Division Bench :

Is an order framing a charge an "interlocutory order" within the meaning of Section 397(2) of the Code of Criminal Procedure, 1973 ? Criminal Case No. 381/CW/77 is pending in the Court of the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay. That case is against the three accused who are the petitioners before us. The allegation against the accused is that they have committed certain offences under the Customs Act. Evidence was led before the Magistrate before framing charge. Thereafter, the Magistrate considered the question as to whether there exist sufficient grounds for framing charge. The Magistrate passed an order dated 27th April, 1979 that a prima facie case has been made out against the accused. Consequently, a formal charge for having committed offences under Sections 135(a) and 135(a)(ii) was framed. It is this order and the framing of charge that is being challenged by the petitioners. This revision application came up before Mr. Justice Pratap for hearing. On 13th August, 1979 Mr. Justice Pratap, after hearing the learned advocates appearing on behalf of the petitioners and the respondents, found that in view of the importance of the above question it was desirable to refer the matter to the Division Bench.

2. Section 397 empowers the High Court and the Sessions Court to call for and examine any record of a proceeding before a Criminal Court for the purpose of satisfying as to the correctness, legality and propriety of any finding, sentence or order. Sub-Section (2) is however material as the contention of the respondents is that the impugned order of framing charge is an interlocutory order and as such, not revisable. That Sub-Section reads as follows :

"S.397(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 order proceeding."

The contention of Mr. Gandhi for the respondent No. 1 is that the framing of a charge does not decide the matter finally and as such, it is an interlocutory order. He relied upon the decision of the Calcutta High Court in the case of Dhanraj Jain v. B.K. Biswas, (1976) 2 Cri LJ 1297. It was a case of a revision against the framing of a charge and a Division Bench of the Calcutta High Court has held as follows :

"Framing of charge is nothing but written formulation of specific accusation and communicated to the accused so that he may defend himself. The controversy between the parties cannot be said to be finally set at rest by framing charges."

Similar view is taken by that High Court is the case of Biswanath Agarwalla v. The State reported in (1976) 2 Cri LJ 1901 (Cal). The Delhi High Court in the case of Bhupinder Kumar v. State reported in 1975 Cri LJ 1185 has also held that an order framing a charge is not revisable in view of the provisions of Sec. 397(2). Mr. Gandhi further relied upon a decision of this Court in the case of Suraj Prakash v. R.K. Gurnasi, (1975) 77 Bom LR 458. The relevant observation on page 461 is as follows :

"Now, as already noted, it was after the coming into force of the new Code that the charge was framed in this case by passing as interlocutory April 9, 1974 and it is the correctness of that order that is challenged by the present petition. On a plain reading of S.397(2), prima facie, it does appear that this being an interlocutory order, this Court is prevented from exercising revisional powers in the present case." We may however observe that in Suraj Prakash case (supra) the question has not been argued before the Bench and the abovementioned observations have been made on the assumption that the order framing charge it an interlocutory order. Mr. Gandhi submitted that in view of the legal position enunciated by the abovementioned decision the petitioners would not be able to invok