IMPORTANT POINT
Order taking cognizance on a complaint is not an interlocutory order and is revisable under section 397(2) of the Criminal Procedure Code by Sessions Judge.

JUDGMENT

B. K. Rchera, J. - Upon hearing Mr. S.K. Padhi for the petitioners, Mr. S C. Mohapatra for the opposite party No.1 and Mr. R.K Palra the learned additional Government Advocate, we find that the impugned order passed by the learned Judicial Magistrate, Digapahandi, taking cognizance of alleged commission of offences by the petitioners punishable under Sections 148, 302 read with Section 149 and 302 read with Section 109 of the Indian Penal Code on the basis of a petition of complaint by the opposite party No. 1 which has been maintained by Mr. C.R. Pal, the learned Sessions Judge, Berhampur, must be set at naught, for the reasons to follow.

2. On the basis of a first information report in respect of the same incident, investigation bad been taken up by the police agency and on its completion a charge sheet bad been placed against the petitioners Ramesh Samal, Alekh Mandai, Raghunath Nahak and Bishnu Mandal and the other petitioners were not proceeded against. An application made under Section 319 of the Code of Criminal Procedure (for short, the Code) for impletion of the petitioners against whom charge-sheet had not been placed had been rejected.

3. Three of the petitioners, namely, Ramesh Samal, Alekh Mandal and Raghunath Nahak, who stood trial in the Court of Session had been acquitted by the time the impugned order of taking cognizance was passed. Another petitioner namely, Bishnu Mandal, stood trial subsequently and was acquitted. In respect of the other petitioners, the order of cognizance in a case friable by the Court of Session could not have been passed on the basis of a petition of complaint without examination of all the witnesses for the complainant opposite party No.1 in flagrant violation of the Proviso to Sub section (2) of section 202 of the Code and in view of the principles laid down by this Court in Gokulanarrda Mohanty and others v. Murlidhar Mallik,1 E. Khetra and others v. Kahal Madhab and others,2 Guljar Hussain v. Krishna Loila and others3 and Om Prakash Saha v. Manmohan Mohanty and another4.

4. Relying on a decision of the Andhra Pradesh High Court reported in Budaraju Seshafiri Rao and others v. T. V. Sarma and another,5 the learned Sessions Judge has dismissed the revision preferred by the petitioners on the ground that an order taking cognizance is an interlocutory one and a revision is barred under section 397(2) of the Code.

5. The legislative intent in enacting Section 397(2) of the new Code was not to limit the powers of the High Court or the Court of Session sitting in revision. All the powers of the old Code have been retained subject to the exceptions provided in sections 397(2) and 397(3) of the Code. This new provision was introduced to prevent vexatious litigation by making applications in revision against interlocutory orders with a view to delaying the proceedings and harassing the adversaries. The term 'interlocutory' has not been defined in the ode. What is an interlocutory order an what is a final order have been interpreted in a Dumber of cases. The meanings of the words 'interlocutory' and 'final' have to be considered separately in relation to the particular purpose for which these words are required to be interpreted and no singular test can be applied to determine as to whether an order is final or interlocutory, as observed by the Supreme Court in Mohanlal Maganlal Thakur v. State of Gujarat6. In that case, some tests for determining a final order as distinct from interlocutory order were culled out from some English decisions in the majority decision of Shelat, J. One of the tests is if the order in question is reversed, would the action have to go one" In the instant case, if the order taking cognizance is reversed the action against the petitioners would not go on.

6. In Amar Nath & Ors. v. State of Haryana and others7, the interpretation of the expression 'interlocutory order' came up for consideration and their Lordships, in paragraph 6 of the judgment, observed an