Headnote:
Code of Civil Procedure – Rule 2 – Order 14 - Code of Criminal Procedure, 1973 - Section 397 - Jurisdiction of Court – Claim of compensation - State Government decided to prosecute appellant for an offence under Section 500 of the Indian Penal Code as it was of the view that Law Minister was defamed in respect of his conduct in discharge of his public functions. Section in accordance with Section 199 (4) (a) of 1973 Code was purported to have been accorded by State Government - Thereupon the Public Prosecutor filed a complaint in the Court of the Sessions Judge, Greater Bombay - Cognizance of offence alleged to have been committed by the appellant was taken by the Court of Session without the case being committed to it as permissible under sub-section (2) of Section 199. Process was issued against the appellant upon the said complaint – Held, As already mentioned, the view expressed in case may be open to debate or difference - One such example is to be found in decision of this Court in Hindustan Steel Ltd. wherein it was held that an order of High Court setting aside an ex parte decree in suit and restoring suit to the file of the trial Court is not a final order within the meaning of Article 133 - It is to be noticed that if High Court would have refused to set aside ex decree, the proceeding for setting it aside would have finally ended and on some of the principles culled out by majority in Mohan case such an order would have been a final order – Court are however, not under any necessity to enter into this controversial arena - In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within meaning of sub-s. S. 397 of the 1973 Code - Before we conclude we may point out an obvious, almost insurmountable, difficulty in way of applying literally test laid down, in and in holding that an order of the kind under consideration being not a final order must necessarily be an interlocutory one - If a complaint is dismissed under S. 203 or under S. 204 Court holds proceeding to be void or discharges the accused, a revision to the High Court at the instance of complainant or the prosecutor would be competent, otherwise it will make S. 398 of the new Code otiose. Does it stand to reason then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the face of it - Legislature left the power to order further inquiry intact in S. 398. Is it not then in consonance with the sense of justice to leave intact the remedy of the accused to move High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding - Answer must be given in of just and reasonable view expressed by us above -

Judgement Key Points

Key Points: - The judgment discusses whether an order issuing process is a final or interlocutory order and the applicability of the inherent powers and revisional jurisdiction under the 1973 Code (Sections 397(2), 482) (!) (!) (!) . - It reiterates Amar Nath v. State of Haryana regarding limits on Section 482 inherent powers when Section 397(2) bars revision, and clarifies the interpretation of "interlocutory order" in this context (!) (!) (!) . - It analyzes the need to preserve remedies for accused where quashing proceedings may be appropriate, emphasizing that the High Court’s inherent powers are to be sparingly used and not against express legal bars (!) (!) (!) . - It references Mohan Lal case and Mohan Lal’s treatment of orders that conclude inquiries, and whether such orders are final or interlocutory for revisional purposes (!) (!) . - The Court ultimately allows the appeal and remits for disposal on merits, indicating the scope of revisional and inherent powers in these circumstances (!) . - It cites guiding tests distinguishing final vs. interlocutory orders (Kuppuswami Rao et al., Salaman v. Warner) and applies them to the 1973 Code framework (!) (!) (!) (!) . - It emphasizes the need to decide whether absence of jurisdiction or illegality of process justifies quashing, and the limitations under Section 397(2) (!) (!) . - The judgment clarifies that the High Court’s inherent powers may be invoked where there is abuse of process or ends of justice, but not where there is a bar under the statute (!) (!) . - It confirms the availability of a remedy via revision or inherent power to quash when the order is not barred, and that such orders may be revisable if not final under the statutory bar (!) (!) . - The decision references finality tests and cautions against overly strict interpretation of "interlocutory" to prevent defeating revisional remedy (!) (!) .

How to determine whether an order issuing process is a final or interlocutory order under Section 397(2) of the 1973 Code?

What is the remedy available to an accused or complainant when a revisional or inherent power challenge is barred by Section 397(2) in the context of quashing criminal proceedings?

What are the circumstances under which the High Court can exercise its inherent powers or revisional jurisdiction to quash criminal proceedings after the introduction of the 1973 Code?

JUDGMENT

UNTWALIA, J.:— This is an appeal by special leave from the order of the Bombay High Court rejecting the application in revision filed by the appellant under Section 397 (1) of the Code of Criminal Procedure, 1973 hereinafter to be referred to as the 1973 Code or the new Code, on the ground that it was not maintainable in view of the provision contained in sub-sec. (2) of S. 397. The High Court has not gone into its merits.

2. It is not necessary to state the facts of the case in any detail for the disposal of this appeal. A bare skeleton of them will suffice. In a press conference held at New Delhi on the 27th September, 1974 the appellant is said to have made certain statements and handed over a "press hand-out" containing allegedly some defamatory statements concerning Shri A. R. Antulay, the then Law Minister of the Government of Maharashtra. The said statements were published in various newspapers. The State Government decided to prosecute the appellant for an offence under Section 500 of the Indian Penal Code as it was of the view that the Law Minister was defamed in respect of his conduct in the discharge of his public functions. Section in accordance with Section 199 (4) (a) of the 1973 Code was purported to have been accorded by the State Government. Thereupon the Public Prosecutor filed a complaint in the Court of the Sessions Judge, Greater Bombay. Cognizance of the offence alleged to have been committed by the appellant was taken by the Court of Session without the case being committed to it as permissible under sub-section (2) of Section 199. Process was issued against the appellant upon the said complaint.

3. The Chief Secretary to the Government of Maharashtra was examined on the 17th February, 1975 as a witness in the Session Court to prove the sanction order of the State Government. Thereafter on the 24th February, 1975 Shri Madhu Limaye, the appellant, filed an application to dismiss the complaint on the ground that the Court had no jurisdiction to entertain the complaint. The stand taken on behalf of the appellant was that allegations were made against Shri Antulay in relation to what he had done in his personal capacity and not in his capacity of discharging his functions as a Minister. Chiefly on that ground and on some others, the jurisdiction of the Court to proceed with the trial was challenged by the appellant.

4. The appellant raised three contentions in the Sessions Court and later in the High Court assailing the validity and the legality of the trial in question. They are:-

(1) That even assuming the allegations made against Shri Antulay were defamatory, they were not in respect of his conduct in the discharge of his public functions and hence the aggrieved person could file a complaint in the Court of a competent Magistrate who after taking cognizance could try the case or commit it to the Court of Session if so warranted in law. The Court of Session could not take cognizance without the committal of the case to it.

(2) The sanction given was bad in as much as it was not given by the State Government but was given by the Chief Secretary.

(3) The Chief Secretary had not applied his mind to the entire conspectus of the facts and had given the sanction in a mechanical manner. The sanction was bad on that account too.

5. The Sessions Judge rejected all these contentions and framed a charge against the appellant under Section 500 of the Penal Code. The appellant, thereupon, challenged the order of the Sessions Judge in the revision filed by him in the High Court. As already stated, without entering into the merits of any of the contentions raised by the appellant, it upheld the preliminary objection as to the maintainability of the revision application. Hence this appeal.

6. The point which falls for determination in this appeal is squarely covered by a decision of this Court, to which one of us. (Untwalia J.) was a party in AmarNath v. State of Haryana, Criminal Appeal No. 124 of 1977 decided on the

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1977 Supreme(SC) 318

How to determine whether an order issuing process is a final or interlocutory order under Section 397(2) of the 1973 Code?

What is the remedy available to an accused or complainant when a revisional or inherent power challenge is barred by Section 397(2) in the context of quashing criminal proceedings?

What are the circumstances under which the High Court can exercise its inherent powers or revisional jurisdiction to quash criminal proceedings after the introduction of the 1973 Code?

Cases Referred (7)