An order refusing police remand is a final order under the Criminal Procedure Code, affecting trial proceedings and warranting maintainability of revision applications against it.

JUDGEMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REFERENCE No. 3 of 2009 IN SPECIAL CRIMINAL APPLICATION NO.1590 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KANDHAL SARMAN JADEJA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR ND NANAVATI, LEARNED SENIOR ADVOCATE WITH MR ND BUCH for NANAVATY ADVOCATES for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 04/05/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. The learned Single Judge of this Court (Her Ladyship Ms. Justice Harsha N. Devani) while 2/34 JUDGMENT hearing Special Criminal Application No.1590 of 2009, directed against the order dated 01.08.2009 passed by the Additional Sessions Judge and 2 nd 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 ? 3/34 JUDGMENT (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.

4/34 JUDGMENT (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 prog