VERMA, J. — The question referred to this bench is :

"Whether under Sec. 397(2) Cr. P.C. the expression interlocutory order covers the framing of the charge during the trial or not."

(2). The petitioner before us is accused of sheltering Pakistani nationals in contravention of sections 13 and 14 of the Foreigners Act. Suffice for the purposes of this discussion that the learned trial Magistrate, after having taken due cognizance of the aforesaid offences, framed charge against the petitioner for the aforesaid offences on 22.4.89. The petitioner pleaded not guilty and claimed trial. However, he filed a revision petition before this Court u/s. 397 Cr. P.C. against the order framing the charge. The office raised a preliminary objection regarding the maintainability of the revision petition. The matter was placed before a learned single Judge of this Court. Learned counsel for the petitioner urged before the learned single Judge that the objection had been raised by the office on account of a Division Bench decision of this Court in Nemichand Vs. State of Rajasthan (1). He contended that the Division Bench judgment was based on the judgment of the Supreme Court in V.C. Shukla Vs. State (2). He further pointed out that V.C. Shuklas case (supra) was decided on the basis of the provisions of the Special Courts Act, 1979 and the ratio laid down in that case could not apply to interpretation to the provisions of Sec. 397 Cr. P.C. He referred to Amarnath & Ors. Vs. State of Haryana & Ors. (3) and Madhu Limaye Vs. State of Maharashtra (4)and urged that Nemichands case (supra)required reconsideration. Learned Single Judge agreed with this contention and directed the matter to be placed before Honble the Chief Justice for constituting a larger bench to decide the question reproduced above. Honble the Chief Justice has referred the question to this bench for decision. This is how the matter has come up before us.

(3). Since the matter was of vital importance and great significance, we issued notice to the learned Advocate General and the President, Bar Association, Jodhpur. Consequently learned Additional Advocate General Shri J.P. Joshi and learned Public Prosecutor Shri K.L. Jasmatia have put in appearance. Shri R.K. Soni, Advocate has also intervened. We have heared the learned counsel for the petitioner Shri N.L. Kukkar and the aforesaid advocates.

(4). Sec. 397 of the Cr. P.C. reads as follows:-

"397. Calling for records to exercise of powers of revision :- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, a.05.when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation :- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(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 other proceeding.

(3) If an application under this section has been made by any person either to the High Court or the Sessions Judge, no further application by the same person shall be entertained by the order of them."

A bare reading of this section goes to show that sub section (1) of this section empowers the High Court or any Sessions Judge to call for and examine the record of any inferior criminal court situate within its or his local jurisdiction for the purposes specified in the said sub-section.

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