RAJASTHAN HIGH COURT
(FB) Miss K. Bhatnagar, R.S. Verma and N.L. Tibrewal, JJ.
Jamail Singh - Appellant
versus
State of Rajasthan - Respondent
Full Bench (Crl.) Revision Petition No. 259-89 (Ref)
Decided on 3.6.1991

IMPORTANT POINT
An order framing charge is not an interlocutory order within the meaning of section 397(2). Criminal Procedure Code and such an order is amenable to the supervisory jurisdiction of the Court of Session and the High Court u/s 397(1) of the Code.

Headnote:Criminal Procedure Code, 1973 - Section 397(2) - Revision - The expression 'interlocutory order' - Whether the expression covers the framing of the charge during the trial or not? - (No) the order framing charge is not an interlocutory order qua section 397(2) of the Code - The order concludes the enquiry or the pre-trial proceedings and thus the order is a final order qua the accused who claims to be discharged - Tested on the touch stone of Art. 21 of the Constitution, section 397 (2) of the Code, cannot be construed to include such orders of moment, orders which take away a valuable right of the accused, though such orders may not conclude the entire controversy)

       Held: In the context of section 397(2), Cr. P.c. expression 'interlocutory order' would not embrace orders, which are of moment and vitally affect the accused. In this context the test would be whether acceptance of the plea raised by the accused was capable of terminating the proceedings against him or not. It would be immaterial if the rejection of such plea does not by itself terminate the proceedings and after rejection the proceedings continue. We may envisage a case where the accused raised a plea that he cannot be tried for want of sanction required by law as condition precedent to the trial or a case where even if the prosecution story is accepted in its totality, no offence is made out or case that the accused had been previously tried on that very charge by a competent court and had been acquitted. Now all these pleas arc such, which if accepted would conclude the proceedings against the accused. We may here recall that in Mohanlal Maganlal Thakkar (supra), it was specifically ruled that finality of the order could not be judged by correlating that order with the controversy in the complaint. The fact that the controversy remained alive was immaterial. We would, therefore, say that a plea, which on its acceptance, was capable of terminating the trial itself, if rejected, would not constitute the order of rejection as an interlocutory order, but for the limited purposes of section 397(2), Cr. P.C. would be an intermediate order partaking the character of a final order and would be revisable u/s 397 (2) Cr. P.C. (Para 28)

       Now, we may consider the nature of the order framing a charge. In a case instituted upon police report, a Magistrate is bound to discharge an accused, when he considers the charge against him to be 'groundless'. In cases instituted otherwise than on police report, a Magistrate is under a mandate to discharge the accused under section 245 Cr. P.C. if he considers that no case has been made out which, if unrebutted warrant his conviction. Under section 227 of the Code of Criminal Procedure a Court of Session shall discharge an accused if he considers that there is no sufficient ground for proceeding against him. Under section 228 Cr. P.C. a court of Session may frame a charge only when the Judge is of the opinion that there is ground for presuming that the accused has committed an offence. Under all these provisions, framing of a charge that amounts to telling the accused that a charge against him is prima facie made and he must face the trial. In other words, it is tantamount to rejection of the plea that accusation against him is groundless or no case has been made out against him, which if unrebutted would warrant his conviction or that there is no ground for presuming that he has committed an offence. (Para 29)

       Further held: That an order framing a charge is an order of moment which by its necessary implication conveys that the accused is not entitled to a discharge and hence must either plead guilty or face trial. The order framing charge when viewed in this light takes away a valuable right of the accused to be discharged. We fail to see how such an order could be an interlocutory one for the purposes of section 397(2), Cr. P.C. With huge arrears piling up and trial of criminal cases taking years and years even in courts of Magistrates, should not an accused be permitted to say that charge against him is groundless or the totality of facts pleaded against him do not constitute an offence or that the court trying him is not competent to proceed with the trial due to lack of proper sanction or some such impediment and that he should not be put to agony of a protracted trial but the court should determine at the earliest opportunity that he need not be tried at all. To our mind, an order which rejects such a plea is definitely an order of moment and cannot be said to be an interlocutory order for the purposes of section 397(2) Cr. P.C. (Para 29)

       Section 397(1), Cr. P.C. provides for judicial review of orders of subordinate courts by way of revision. Section 397(1) has been couched in the widest possible language. Provisions of section 397(1) have to be construed liberally in favor of the citizen because it provides a protective and supervisory umbrella for reaching possible correctable injustice at the hands of subordinate courts. Section 397(2), Cr. P.C. is a fetter on this power and hence has to be confined to the letter

       and spirit of law. It was in this spirit that the various tests for formulating the true character of an order were modulated and power of supervision sought to be constricted by these tests was widened and amplified by ascertaining a third class of orders, namely, intermediate orders, which arc neither interlocutory nor final (Amarnath Madhu Limaye (supra)). Hence we are of the view that tested on the touch stone of Article 21, section 397(2), Cr. P.C. cannot be construed to include orders of moment, orders which take away a valuable right of the accused, though such orders may not conclude the entire controversy. (Para 30)

       Consequently field: That order framing a charge concludes the enquiry or the pre-trial proceedings and thus the order framing a charge is a final order qua the accused who claims to be discharged. There is much justification in the contention of Shri Kukkad that it is framing of a charge, whether it be u/s 228 Cr. P.C. or u/s 240 Cr. P.C. or u/s 245 Cr. P.C., which clothes the court concerned with jurisdiction to try the accused. Till this stage is reached, the court is competent to discharge the accused, terminating the prosecution itself. Hence, in our considered opinion, an order framing charge is not an interlocutory order qua section 397(2), Cr. P.C. (Para 31)

       Finally held: To sum up, we find that an order framing charge is an order of moment; it deprives the liberty of a citizen and puts him to jeopardy of a trial. Such an order finally rejects the plea of the accused that he is entitled to discharge or that he is not liable to be tried. Such an order concludes the enquiry and the pre-trial proceedings against the accused. His order framing charge takes away a very valuable right of the accused. Hence, in our considered opinion, an order framing charge is not an interlocutory order within the meaning of section 397(2), Cr. P.C. and such an order is amendable to the supervisory jurisdiction of the court of Session and the High Court under section 397(1), Cr. P.C. We answer the reference accordingly. (Para 34)

       Result - Reference answered accordingly. Revision be listed before the learned single Judge for decision on merits.