J.B.PARDIWALA

1. The learned Single Judge of this Court (Her Ladyship Ms. Justice Harsha N. Devani) while hearing Special Criminal Application No.1590 of 2009, directed against the order dated 01.08.2009 passed by the Additional Sessions Judge and 2nd Fast Track Court, Rajkot, below Applications Exhs:12, 14, 15, 18 and 22, preferred by the accused in Criminal Revision Application No.100 of 2009, framed the following questions for consideration and opinion of a Division Bench-Larger Bench:-

“(i) Whether an order refusing to grant remand has any bearing on the proceedings of the trial itself ? Whether an order refusing to grant remand has any effect on the ultimate decision of the case ?

(ii) Whether an order refusing to grant remand can affect the progress of the trial or its decision in any manner ?

(iii) Whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order ?

(iv) Consequently, whether a revision against an order refusing to grant police remand is maintainable under section 397 CrPC ?”

2. The learned Single Judge directed the Registry to place Special Criminal Application No.1590 of 2009 before the Hon'ble Chief Justice for appropriate orders. The Hon'ble Chief Justice has referred the matter to us and accordingly, this reference has been placed before us for our consideration.

3. Having regard to the nature of the issues involved, we deem fit and proper to first take up Question No.3 and answer accordingly, as the answer to this Question No.3 will have a direct bearing on the other questions.

4. We proceed to answer the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order.

(I) Contention of petitioner:

With regard to the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order, learned Senior Counsel Mr.N.D. Nanavati, appearing with learned advocate Mr.N.D. Buch submitted that in view of the decision of the Supreme Court in State Vs. N.M.T. Joy Immaculate reported in (2004) 5 SCC 729 reported in (2004) 5 SCC 729, a remand order cannot affect the progress of the trial or its decision in any manner and that it is a pure and simple interlocutory order. According to Mr.Nanavati, though the Supreme Court was dealing with the question as to whether an order granting remand is an interlocutory order, or not, in view of the observations of the Supreme Court to the effect that “a remand order cannot affect the progress of the trial or its decision in any manner and that it is a pure and simple interlocutory order” even an order, whereby remand has been refused, would fall within the category of a pure and simple interlocutory order and consequently, a revision against such an order would not be maintainable.

Mr.Nanavati, learned Senior Advocate, further contended that an order of remand is made in exercise of powers under Section 167 of the Code, hence, both, an order granting remand or refusing remand have to be treated alike. The main plank of the contention is that source of power is the same and if it is exercised by the Competent Court in the context of Section 167 of the Code, then it is exercised in that jurisdiction and not the outcome of such proceedings. According to Mr.Nanavati, learned Senior Advocate, adjudication process is the same. Learned Senior Advocate Mr.Nanavati, submitted that if an order of grant of remand is to be termed and treated as an interlocutory order then necessarily order refusing remand should also be termed and treated as an interlocutory order. Learned Senior Advocate Mr.Nanavati, submitted that an order deciding rights either way would be an interlocutory or a final order as the case may be. Either it is interlocutory for all purposes or final for all purposes. Counsel submitted that it would be hazardous to say that if the decision is in favour of the accused, it is a final order and if it is against the