BEHERA, J.

( 1 ) UPON hearing Mr. S. K. Padhi for the petitioners, Mr. S. C. Mohapatra for the opposite party No. 1 and Mr. R. K. Patra, 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 Ss. 148, 302 read with Ss. 149 and 302 read with S. 109 of the Penal Code on the basis of a petition of complaint by the opposite party 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 had been taken up by the police agency and on its completion, a charge-sheet had been placed against the petitioners Ramesh Samal, Alekh Mandal, Raghunath Nahak and Bishnu Mandal and the other petitioners were not proceeded against. An application made under S. 319 of the Cr. P. C. (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 cognisance was passed. Another petitioner, namely, Bishnu Mandal, stood trial subsequently and was acquitted. In respect of the other petitioners, the order of cognisance in a case triable 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-sec. (2) of S. 302 of the Code and in view of the principles laid down by this Court in (1979) 47 Cut LT 244, Gokulananda Mohanty v. Muralidhar Mallik, 1983 Cri LJ NOC 52 (Orissa), E. Khetra v. Kahal Madhab, (1984) 1 Orissa LR 58 : 1983 Cut LR (Cri) 383, Guljar Hussain v. Krishna Soila and 1984 Cri LJ 901 : (1984) 1 Orissa LR 340 : (1984) 57 Cut LT 355, Om Prakash Saha v. Manmohan Mohanty.

( 4 ) RELYING on a decision of the Andhra Pradesh High Court reported in 1976 Cri LJ 902, Budaraju Seshagiri Rao v. T. V. Sarma, the learned Sessions Judge has dismissed the revision preferred by the petitioners on the ground that an order taking cognisance is an interlocutory one and a revision is barred under S. 397 (2) of the Code.

( 5 ) THE legislative intent in enacting S. 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 Ss. 397 (2) and 397 (3) of the Code. This new provision was introduced to prevent vexatious litigations 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 Code. What is an interlocutory order and what is a final order have been interpreted in a number of cases. The meanings of the word 'interlocutory' and 'final' have to be considered separately in relation to the particular purposes 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 AIR 1968 SC 733 : (1968 Cri LJ 876), Mohanlal Maganlal Thakur v. State of Gujarat. 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 on ?" In the instant case, if the order taking cognisance is reversed, the action against the petitioners would not go on.

( 6 ) IN AIR 1977 SC 2185 : (1977 Cri LJ 1891), Amar Nath v. State of Haryana, the interpretation of the expressi