Revisiting and Demystifying the Decades Old Interlocutory Order — Criminal Revision Conundrum

Op Ed

   

Before the Code of Criminal Procedure, 19732 (hereinafter referred to as “the new Act”), came into force; the related law in force was the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Act”). The power of revision was primarily contained in Section 435 of the old Act. In the old Act, no distinction was made for the exercise of revisional powers apropos interlocutory or other category of orders. The result being that even with regard to purely interlocutory orders, revisional powers could be exercised. The vast power of revision conferred in the old Act was one of the main contributing factors in the delay of disposal of criminal cases. To remedy this, the 41st Law Commission Report suggested the taking away of the revisional powers of the courts apropos interlocutory orders. This suggestion was adopted in the new Act as is clear from the Statement of Objects and Reasons of the new Act and more particularly from the provision contained in Section 397(2)3 of the new Act which reads as under:

(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.

The legislature did not think it necessary to provide any definition of the term interlocutory order either in the definition clause or in the body of Section 397 of the new Act. This led to a lot of confusion. The term interlocutory order vis-à-vis the exercise of the revisional powers as contained in Section 397 of the new Act came to be considered in many a cases after the passing of the new Act.

The author has, before writing this article, meticulously perused the only four-Judge Bench decision of the Supreme Court on the point, all the three-Judge Bench and all the two-Judge Bench decisions of the Supreme Court on the point including the two-Judge Bench decision which has been approved by the only four-Judge Bench decision of the Supreme Court on the point.

The first three-Judge Bench decision of the Supreme Court on the point came on 23-11-1976, in Parmeshwari Devi case4 in which it was essentially held that an order though literally interlocutory cannot be treated as interlocutory if it is conclusive as to a person who is not a party to the enquiry or trial against whom it is directed i.e. if it is passed against a stranger to the case who would have no opportunity of challenging it after a final order is made affecting the parties concerned provided the order adversely affects the stranger's rights.

Then came a two-Judge Bench decision of the Supreme Court on the point on 29-7-1977, titled Amar Nath case5. The following essential tests were laid down by the Bench to determine what is an interlocutory order and what is not an interlocutory order:

Test on what is an interlocutory order

The term interlocutory order in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense and it merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties.

Test on what is not an interlocutory order

1. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order; and

2. orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders.

Then came a three-Judge Bench decision of the Supreme Court on the point on 31-10-1977, titled Madhu Limaye case6 in which the judgment of the Supreme Court in Amar Nath case7 was partially affirmed on the point of what is meant by the term interlocutory order. In this case, it was held that the term interlocutory order as used in Section 397 of the new Act does not invariably mean the converse of the term final order. After clarifying the above position, the following yardstick was given to determine whether a particular order is not an interlocutory order; which is as follows:

an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).

Then came the only four-Judge Bench decision of the Supreme Court (till date) on the point on 7-12-1979, titled V.C. Shukla case8. In this case, after discussing the judgments in Amar Nath case9 and Madhu Limaye case10, they were approved on the point of law laid down therein apropos what is not an interlocutory order. It was also held that intermediate, quasi-final and final orders are revisable. Apart from these, the following law was laid down in V.C. Shukla case11:

7. … the term “interlocutory order” used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial … If, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, 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.

Then came a three-Judge Bench decision of the Supreme Court on the point on 13-7-2017, titled Girish Kumar Suneja case12 in which affirming the decision in Madhu Limaye case13, it has been held that in Madhu Limaye case14 it had been held that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Finally, it was held in Girish Kumar Suneja case15 that revisional powers can be exercised only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings.

The decision in Girish Kumar Suneja case16 appears to be not laying down the correct law — on the point as to what is an interlocutory order — due to the following reasons:

1. Firstly, in Madhu Limaye case17, the yardstick — not exhaustive — to determine what is not an interlocutory order was provided. Nowhere in Madhu Limaye case18, it was held as to what constitutes an interlocutory order. But in Girish Kumar Suneja case19 it has been wrongly taken to mean that the test laid down in Madhu Limaye case20 is exhaustive for determining what is an interlocutory order — rather than what is not an interlocutory order. There is an ocean of difference between the tests — if they (the tests) are not exhaustive — of what is an interlocutory order and what is not an interlocutory order. An order may not be interlocutory in nature, but it does not mean that other orders cannot be interlocutory in nature. For instance an order which is such that when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order is not an interlocutory order, but it does not mean that there cannot be other orders which are not interlocutory in nature.

2. Secondly, in Girish Kumar Suneja case21, it has been held that revisional powers can be exercised only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. This goes against the law laid down by an earlier two-Judge Bench Supreme Court decision in Amar Nath case22 which was affirmed as abovestated by a four-Judge Bench in V.C. Shukla case23. In Amar Nath case24, it was held that orders which substantially affect the right of the accused, decide certain rights of the parties, and which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders. That is to say that in Amar Nath case25 a few other categories of orders have been spoken about which would not fall in the category of interlocutory orders. As per the law of precedents, the law laid down by a two-Judge Bench of the Supreme Court and later discussed and affirmed by a four-Judge Bench of the Supreme Court cannot be given a go-by by a subsequent three-Judge Bench decision of the Supreme Court. And in case it does, what is binding is the law laid down by the two-Judge Bench and later discussed and affirmed by the four-Judge Bench rather than the three-Judge Bench decision of the Supreme Court.

Till now, we saw the law laid down by the various Benches of the Supreme Court on the point as to what is and what is not an interlocutory order for the purpose of exercise of revisional powers under Section 397 of the new Act; we also saw that Girish Kumar Suneja case26, due to the aforementioned reasons, does not lay down the correct law on the point in issue.

Before we succinctly see as to what constitutes an interlocutory order and what does not ; we shall examine the law laid down in Amar Nath case27 which is essentially the reason behind the conundrum in determining what is and what is not an interlocutory order.

In Amar Nath case28, it has been held that an interlocutory order is an order of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties whereas an order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order; also orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders. Now, the million-dollar question is when can it be said that an order affects the rights or liabilities of a party. In Amar Nath case29, a few examples and some guideline have been provided for the same which are as follows:

1. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code.

2. The judgment in Central Bank of India Ltd. v. Gokal Chand30 is referred to wherein it is held that the term interlocutory order does not include interim orders which are merely procedural and do not affect the rights or liabilities of the parties like orders pertaining to the summoning of witnesses; discovery, production and inspection of documents; issue of a commission for examination of witnesses; inspection of premises; fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interim orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. In Amar Nath case31, relying on the above judgment in Central Bank of India Ltd. v. Gokal Chand32, it has been held that the aforesaid decision clearly illustrates the nature and incidents of an interlocutory order and the incidents given by this Court constitute sufficient guidelines to interpret the connotation of the word interlocutory order as appearing in sub-section (2) of Section 397 of the 1973 Code.

An order relating to summoning or refusing to summon a witness or an order refusing to or admitting a document — in general — is considered as an order affecting the rights or liabilities of a party; but as per the meaning given in Amar Nath case33, orders which are steps in aid of the pending proceeding, which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and which regulate the procedure only are considered not to affect any rights or liabilities of parties.

Here the problem is that the test as provided above is imperfect. It can be interpreted loosely given the imperfect yardstick provided for in Amar Nath case34. When would an order be considered as affecting the rights and liabilities of parties cannot be culled out with certitude on applying the above tests and hence the confusion.

The solution to this is either an authoritative pronouncement on the true and exhaustive meaning of the term interlocutory order by a larger Bench of the Supreme Court or the best solution would be if the legislature makes suitable amendments in the new Act to make it crystal clear as what would and what would not constitute interlocutory order vis-à-vis Section 397(2) of the new Act.

The other two-Judge Bench decisions35 of the Supreme Court although worth perusal, neither legally enlarge nor curtail the scope of the term interlocutory order laid down in the abovereferred judgments.

On the basis of the law laid down by the Supreme Court, the following is an interlocutory order:

An order of a purely interim or temporary nature which does not decide or touch the important rights or the liabilities of the parties.

On the basis of the law laid down by the Supreme Court in various pronouncements, the following are not interlocutory orders:

1. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order.

2. Orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders.

Note for Points 1 and 2: Orders which are steps in aid of the pending proceeding, and which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and which regulate the procedure only are considered not to affect any rights or liabilities of parties.

3. Orders rejecting the plea of a party on a point which, when accepted, will conclude the particular proceeding.

4. Orders passed against a stranger to the case who would have no opportunity of challenging it after a final order is made affecting the parties concerned provided the order adversely affects the stranger's rights.

Rider: The term interlocutory order used in the new Act has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial (as per the law laid down by the four-Judge Bench in V.C. Shukla case36).


† Civil Judge, Senior Division, Tarana, Ujjain, Madhya Pradesh. Author can be reached at <dagliyashrikrishna@gmail.com>.

2. Code of Criminal Procedure, 1973.

3. Criminal Procedure Code, 1973, S. 397(2).

4. Parmeshwari Devi v. State, (1977) 1 SCC 169.

5. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

6. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

7. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

8. V.C. Shukla v. State, 1980 Supp SCC 92.

9. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

10. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

11. V.C. Shukla v. State, 1980 Supp SCC 92.

12. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

13. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

14. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

15. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

16. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

17. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

18. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

19. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

20. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551.

21. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

22. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

23. V.C. Shukla v. State, 1980 Supp SCC 92.

24. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

25. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

26. Girish Kumar Suneja v. CBI, (2017) 14 SCC 809.

27. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

28. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

29. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

30. AIR 1967 SC 799.

31. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

32. AIR 1967 SC 799.

33. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

34. Amar Nath v. State of Haryana, (1977) 4 SCC 137.

35. Haryana Land Reclamation and Development Corpn. Ltd. v. State of Haryana, (1990) 3 SCC 588; Om Kumar Dhankar v. State of Haryana, (2012) 11 SCC 252; Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198; Mohit v. State of U.P., (2013) 7 SCC 789; Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624; MCD v. Girdharilal Sapuru, (1981) 2 SCC 758; Gautam Navlakha v. National Investigation Agency, 2021 SCC Online SC 382; State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539; S.K. Bhatt v. State of U.P., (2005) 3 SCC 634; K.K. Patel v. State of Gujarat, (2000) 6 SCC 195; Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401; Sethuraman v. Rajamanickam, (2009) 5 SCC 153; Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370; D. Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695 and Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134.

36. V.C. Shukla v. State, 1980 Supp SCC 92 : 1980 SCC (Cri) 695.

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