An order framing a charge against an accused is not a final order and, therefore, a revision petition against such an order is not maintainable.

( 1 ) BHUPINDER Kumar Bhatnagar, the petitioner herein, and another by name, Parmod Kumar, were committed by the Metropolitan Magistrate. Delhi to take their trial in the Court of Session and a charge has been framed against the petitioner for an office under section 376 of the Indian Penal Code. The petitioner has filed the present revision petition against the order of the learned Additional Sessions Judge dated 5. 6. 1974 framing the charge against the petitioner.

( 2 ) THE order of the learned Additional Sessions Judge framing the charge is being challenged on the ground that the material on record did not make out a prima facie case against the petitioner for an offence under section 376 Indian Penal Code inasmuch as in the statements. made by the proscutrix under Ss. 161 and 164 Cr. P. C. she had not implicated the petitioner by name and the description of the petitioner given by her in such statements did not tally with the description of the petitioner and further that in the statement of the prosecutrix before the committing Magistrate, she did not identify the petitioner as the person who had committed rape on her.

( 3 ) A. preliminary objection has, however, been raised by the learned counsel for the State against the maintainability of the present petition under the provisions of the new Criminal Procedure Code. It is pointed out that the order of the learned Additional Session Judge framing the charge against the petitioner is in the nature of an interlocutery order and that under section 377 (2) of the new Code, no revision lies against such an interlocutory order. S. 397 is:-

( 4 ) THE expression interlocutory order has not been defined in the Code nor are the expressions "judgment" or "final order" defined in the Code. But the meaning of these expressions has been explained in, the judgments of the Privy Council, the Federal Courrt and the Supreme Court. In Ramchand Manjimal v. Goverdhandas Vishandas Ratanchand (AIR 1920 PC 86), Viscount Gave, J. , held that the test of the finality of an order was whether the order finally disposed of the rights of the parties. This test was adopted by the Privy Council a later case, namely:-V. N. Abdul Rehman and others v. D. K. Cassim and Sons and another (AIR 1933 PC 58) and Sir George Lowndes J. , added the following observations to the test laid down by Lord Cave :- "it should be noted that the appellate Court in India was of opinion that the order it had made went to the root of the suit, namely, the jurisdiction of the Court to entertain it, and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under S. 109 (a) of the Code. "

( 5 ) THE tests laid down by the Privy Council in the above two cases were approved by the Federal Court in S. Kuppuswami Rao v. The King (AIR 1949 Federal Court 1) and it was further held that the tests which had to be applied to determine whether an order was a final order were the same both in respect of orders in civil proceedings as well as orders in criminal proceedings. The Federal Court also approved the following interpretation of the expression "final order" by Lord Esher, N. R. in Salaman v. Waner (1891) 1 C. B. 734) :- "if their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but if given in the other will allow the action to go on, then I think it is not final, but interlocutory. " The Federal Court reiterated the same rule in a later case, namely, Mohammad Amin Brothers Ltd. v. The Dominion of India and others (AR. 1950 Federal Court 77) and furt