RAJENDRA KUMARSITARAM PANDE ETC.

UTTAM AND ANOTHER

FEBRUARY 11, 1999

[G.B. PATTANAIK ANDS. RAJENDRA BABU, JJ.)

Code of Criminal Procedure, 197~Section 397(2)-0rder directing issuance of process-Whether interlocutory--Wlzether such order amenable to revisional jurisdiction-Held, such order is not purely interlocutory but inter- C mediate or quasi fina/-Revisional jurisdiction, held, could there[ ore be exercised-Wltere no case made out on facts, it is fit case for quashing order of issuance of process and proceedings itself-Penal Code, Sections 500, 499 exception 8.

D Penal Code 1860-Sections, 500, 499 exception 8---Avemtent that false imputations made by accused to Treasury Officer that complainant went to office in drunken state, abused senior official and used filthy language-Report of Treasury Officer to Magistrate indicating that departmental inquiry had found complainant guilty-Held, 011 fact, case falls within excep- E tion 8 to Section 499-Code of Criminal Procedure 1974, Section 202( 1).

The complainant alleged that the accused had defamed him when they, inter alia, made a false complaint to the Treasury Officer, Amravati, falsely imputing that he had come to the office in a drunken state and abused the Treasury Officer among others, and of using filthy language.

The Magistrate postponed the issue of process against the accused and directed the TreasurY Officer to submit a report under Section 202(1), Cr.

PC. After receipt of the report, the Magistrate, holding that sufficient material existed for issuance of process, accordingly issued summons against the accused. The Sessions Judge, in revision, while setting aside G the order of the Magistrate, found that the Magistrate having directed an inquiry under Section 202, was not thereafter justified in discarding the report of the Treasury Officer. The High Court held otherwise, and concluded that the order directing issuance of process being an interlocutory order, the Sessions Judge had no jurisdiction to interfere with it in his H revisional jurisdiction.

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R.K.S.PANDEv. UTIAM 581

Before this Court, it was contended for the accusedappellants that A the issuance of process is not an interlocutory order; and that the complaint read with the report of the Treasury Officer brought it within exception 8 to Section 499. Further, though the remedy of recalling the process is available in terms of KM. Mathews v. State of Kera/a, AIR (1992) SC 2206, the matter being before this Court, it can consider the averments to determine whether a case is made out.

~ It was argued for the respondent that the order of the High Court was justified and needed no interference.

Allowing the appeal, this Court

Held : 1.1. The expression 'interlocutory order' has not been defined in Cr.PC. The position in law is that the expression, as used in Section 397(2), has been used in a restricted sense and merely denotes orders purely of an interim or temporary nature which do not decide or touch

the important rights or liabilities of the parties. [584-1''-G] D

An order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding is not an interlocutory order. [ 584-H]

It has to be give11 a very liberal construction in favour of the accused.

The revisional power of the court could be attracted if the order was not purely interlocutory but intermediate or quasi final. [585-A]

Amar Nath v. State of Haryana, [1978] 1 SCR 222; Madhu Limaye v.

State of Maharashtra, [1978] 1 SCR 749 and V.C. Shukla v. State, [1980] 2 SCR 380, relied on.

1.2. An order directing issuance of process is not purely interlocutory. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. [585-B]

2. Exception 8 to Section 499 clearly indicates that it is not defama-

,.. '- tion to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of the accusation. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the H

A complainant, a departmental inquiry had found the complainant to be , F guilty. Under such circumstances, the fact of the accused persons having made a report against the complainant to the superior officer would be covered by exception 8 to Section 499. [585-H; 586-A-B]

3. Requiring the accused persons to face trial or even approach the B Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of justice. This is a fit case for quashing the order ofissuance of process and of the proceedings itself. [586-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 637of1995.

From the Judgment and Order dated 24.8.94 of the Bombay High Court in Crl. Application No. 376 of 1994.

U.U. Lalit, Ms. Aparajita Singh and Atul Sharma for the Appellants.

S.V. Deshpandey, Pramit Saxena and D.M. Nargolkar for the Respondents.

The Judgment of the Court was delivered by

PATIANAIK, J. The accused persons in a complaint case are the E appellants and in this appeal, the Judgment of the Nagpur Bench of Bombay High Court in Criminal Application No.376 of 1994 is under

challenge~ By the impugned Judgment, the High Court came to the conclusion that the order of the Judicial Magistrate, First Class, Amravati dated 16.8.91, issuing process was only an interlocutory order and was not F amenable to the jurisdiction of the Sessions Judge under Section 397 of the Cr.P .C. and therefore, the Sessions Judge committed error in interfering with the said order of the Magistrate, directing issuance of process. The High Court however also observed that it would be open for the Judicial Magistrate to recall the order of issuing process, if satisfied, in accordance G with the Judgment of this Court in KM. Mathew v. State of Kera/a, AIR

(1992) SC 2206.

On the basis of a complaint, filed by the Respondent No. 1 alleging inter alia that the accused persons made a false complaint to the Treasury

Officer, Amravati, containing false imputations to the effect that the com- H plainant had come to office in a drunken state and abused the Treasury

R.KS. PANDE v. UTIAM [PATIANAIK, J.] 583

Officer and thereby have committed criminal offence punishable under A Section 500 read with Section 34 IPC, the Magistrate postponed the issue of process against the accused and directed the Treasury Officer to submit a report under subsection (1) of Section 202 of the Code of Criminal Procedure. After receipt of the said report from the Treasury Officer, the Magistrate was of the opinion that sufficient material exist for issuance of process and accordingly issued summons against the accused persons under Section 500 read with Section 34 IPC. This order of the Magistrate dated 16.8.91 was chal)enged by the :; ccused persons in a revision before the learned Sessions Judge. Learned Sessions Judge came to the conclusion that the Magistrate having himself directed for an inquiry under Section 202, on receipt of the inquiry report from the Treasury Officer, was not justified in discarding the same. On the basis of the aforesaid inquiry report and the allegations in the complaint, the Sessions Judge came to the conclusion that the case is one covered by exception 8 to Section 400 IPC

and, therefore, issuance of process itself is an abuse of process. He, accordingly set aside the order of the Magistrate, directing issuance of D process. Against the aforesaid revisional order of the learned Sessions Judge, the complainant moved the High Court, invoking its jurisdiction under Section 482 of the Code of Criminal Procedure. The High Court came to the conclusion that the order directing issuance of process being an interlocutory order, the Sessions Judge has no jurisdiction under Section 397 to interfere with the same and accordingly set aside the order of the learned Sessions Judge.

Mr. Lalit, learned counsel, appearing for the appellants submitted

that the order of the Magistrate, directing issuance of process cannot be held to be an interlocutory order not amenable to the revisional jurisdiction p under Section 397 of the Code of Criminal Procedure. He further contended that when the allegations in the complaint read with the report of the Treasury Officer obtained from him pursuant to an inquiry made under subsection (1) of Section 202, clearly bring out the case under exception 8 to Section 400, the High Court in exercise of its inherent jurisdiction under Section 482 ought not have interfered with the order of the Sessions G Judge, passed in revisional jurisdiction. The learned counsel also submitted that even if the remedy of approaching the Magistrate by the accused under Section 205 for recalling the process already issued is available in terms of the judgment of this Court in Mathew's case, but the matter being present in this court itself, this Court may consider the averments made in the H

A complaint petition to find out whether any offence is made out and then ,,~

would pass appropriate order. Mr. Deshpande, the learned counsel, appearing for the respondent, on the other hand contended that the direction given by the High Court is fully justified in the facts and circumstances of the case and no interference -at all is called for under Article 136 of the

B Constitution of India.

In view of the rival submissions at the bar, the first question that

~ arises for consideration is whether the order of the Magistrate, directing • --<

issuance of process can be said to be such an interlocutory order, which is not amenable to the revisional jurisdiction under Section 397, in view of c the bar in sub-section (2) thereof. Sub-section (2) of Section 397 reads thus:

397(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.

D The very object of conferring revisional jurisdiction upon the superior criminal courts is to correct miscarriage of justice arising from misconception of law or irregularity of procedure.

E Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression "interlocutory order" has not been defined in the F Code. In Amar Nath & Ors. v. State of Haryana, [1978] 1 SCR 222, this Court has held that the expression "interlocutory order" in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any

G order which substantially affects the right of the parties cannot be said to be an "interlocutory order". In Madhu Limaye v. State of Maharashtra, [1978] 1 SCR 749, a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will , •.-.. conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla v. State, [1980] 2 SCR 380, this Court has held that H the term "interlocutory order"used in the Code of Criminal Procedure has

R.K.S.PANDEv. UTI'AM[PATIANAIK, J.] 585

"i.. to be given a very liberal construction in favour of the accused in order to A ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under subsection B

(2) of Section 397 would apply. On the other hand, it must be held to be

~ intermediate or quasi final and, therefore, the revisional jurisdiction under >- Section 397 could be exercised against the same.

The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the c order in view of the bar under sub-section (2) of Section 397 of the Code.

The next question that arises for consideration is whether reading the complaint and the report of the Treasury Officer which was obtained pursuant to the Order of the Magistrate under sub-section (1) of Section D 201 can it be said that a prim a f acie case exist for trial or exception 8 to Section 400 clearly applies and consequently in such a case, calling upon the accused to face trial would be a travesty of justice. The gravamen of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations E to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in the filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called F upon the Treasury Officer to hold inquiry and submit a report and the said Treasury Officer did submit a report to the Magistrate. The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not.

Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to G

....

Section 499 clearly indicates that it is not a defamation to prefer in good _,. faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation.

The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmen- H

A ta! inquiry had been initiated and the complainant was found to be guilty.

Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused to the Treasury Officer in a drunken state which is the gravamen of the present complaint and nothing more, would be covered by exception 8 to Section 499 of the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out. In this view of the matter, requiring the , accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of justice. On the other hand in our considered opinion this is a C fit case for quashing the order of issuance of process and the proceedings itself. We, therefore, set aside the impugned order of the High Court and confirm the order of the learned Sessions Judge and quash the criminal proceeding itself. This appeal is allowed.

U.R.

Appeal allowed.