I.K. Kotwal, J.
1. We are called upon to answer three different questions of law arising in three criminal references Nos. 27 of 1977, 61 of 1978 and 28 of 1979 which, if stated more exhaustively. should read as under:
(1) Whether the newly inserted Sub-section (4-a) of Section 435 Cr.P.C. which creates a bar against revision of an interlocutory order is retrospective in operation, in the sense, that it would affect even pending revisions and references?
(2) Whether an order framing a charge is an interlocutory order so as to attract the bar created by Sub-section (4-a) of Section 435?
(3) Whether an order refusing to summon a witness Under Section 540 CrIPC is also an interlocutory order that attracts the same bar?
2. A charge Under Section 7/16 of the Prevention of Food Adulteration Act was framed against the petitioner S. K. Mahaian in Criminal Reference No, 27 of 1977 by Munsiff judicial Magistrate, Jammu, by his order dated 8-9-1976. He challenged it before Chief Judicial Magistrate, Jammu, who by his order dated 25-1-1977 made a recommendation to this Court that the charge being unwarranted may be quashed. While this revision was still pending in this Court, large scale amendments were made to the Code of Criminal Procedure hereinafter the Code by Act No. XXXVII of 1978, hereinafter the Amending Act, which came into force on 1st Apr. 1979. one of these being insertion of Sub-section (4-a) of Section 435 which reads as under:
(4-a) The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.
3. A preliminary objection, based upon the view taken by this Court in its two earlier cases, namely. Narrinder Kumar v. State, Cr. Revision petition No. 24 of 1980 decided on 10-2-1981 and State v. Mohd. Zaman Shah 1981 Srina-gar LJ 38 : 1981 Cri LJ 783 that an order framing a charge being interlocutory in nature, is not revisable, was raised on behalf of the respondent. This objection was sought to be met by the opposite party in two ways; one, that the Amending Act is not retrospective in nature and has, therefore, no application to pending cases, and two, that an order framing a charge, in any event, is final in nature, hence revisable. Reliance was placed upon a bench decision of the Bombay High Court in Mohan Lai Dev-danbhai Chokshi v. J. S. Wagh 1981 Cri LJ 454 wherein a contrary view has been taken that an order framing a charge is not interlocutory hence revisable. Since both the courts had placed reliance upon the same authority, namely, V. C. Shukla v. State through C. B. I. for arriving at two opposite conclusions, the learned Acting Chief Justice considered it necessary to make a reference to a larger Bench for an authoritative pronouncement on questions Nos, (1) and (2) reproduced heretofore and made a reference accordingly.
4. These very questions have been referred in Criminal Reference No. 61 of 1978. In this case, charges under Sees. 498 and 498/109 R. P. C. respectively were framed against th0 petitioners Garibu and Mst, Chuchan by the Sub-Divisional Magistrate. Reasi by his order dated 7-9-1978. They challenged this order in revision before Sessions Judge, Udhampur, The learned Sessions Judge being of the opinion that the charges not being warranted by facts were liable to be quashed, made a recommendation to this Court on 25-11-1978 accordingly.
5. In the case out of which Criminal Reference No, 28 of 1979 has arisen, Munsiff Judicial Magistrate. Nowshera, by his order dated 18-12-1978, had refused to summon a person as a court witness Under Section 540 Cr.P.C. at the instance of the petitioner-complainant. Aggrieved thereby, the petitioner challenged the said order before Sessions Judge, Rajouri, who made a reference to this Court that the order may be quashed as it was not in accordance with law. In these premises the learned Acting Chief Justice who initially heard the reference, has referred questions Nos. (1) and (3) reproduced heretofore. This is how a reference on all the three questions to this Bench.
Question No; l
6. this Court, in Mst. Fazi v. Mohammad Bhat AIR 1979 J & K 69. (FB) had an occasion to deal with the ambit and scope of an amending Act. On consideration of various decisions on the point, it had ultimately arrived at the following conclusions:
The principles, which emerge out of the aforesaid decisions, may be summed up as below:
(i) A suitor has a right to prosecute his suit to its logical end. in the court in which it has been filed, on the basis of the cause of action which has accrued to him, before the iurisdiction of the court is ousted by any law. Therefore, a statute ousting the iurisdiction of a court, has to be construed strictly.
(ii) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intend-ment. whereas a Statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective. Again, a statute which is retrospective in its application, should never be given an extended meaning, and should be strictly confined to its clearly defined limits.
(iii) Law relating to forum and limitation is also procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is yet substantive in nature.
(iv) Every litigant has a vested right in substantive law, but no such right exists in procedural law,
(v) A procedural Statute should not be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished.
(vi) A Statute which not only changes the procedure but also creats new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.
7. Keeping in view the aforesaid principles, a further question on which the decision of question No, i would turn is: does a party have substantive, statutory right under the Code to go in revision? If the answer to this question is in the negative, then the answer to question No. 1 must be in the affirmative, for in that case Sub-section (4-a) of Sec-lion 435, added to it by the Amending Act, shall be deemed to be a part of the procedural law, hence presumed to be retrospective in operation in which no litigant can claim a vested right,
8. Section 435 empowers the High Court, the Sessions Judge and the Chief Judicial Magistrate to call for and examine the record of any proceeding pending before or disposed of by any criminal court inferior to it or him, to examine the correctness. legality or propriety of any finding, sentence or order recorded or passed by it therein, or to examine the regularity of any such proceeding. The High Court alone, can, however, pass a final order on examin'ing such record by exercising its revi-sional powers Under Section 439, unless it is a case covered by Section 436 or Section 437 in which case such powers may be exercised by the Sessions Judge or the Chief Judicial Magistrate, as the case may be. In all other cases, the Sessions Judge or the Chief Judicial Magistrate, as the case may be, even if satisfied that the order passed by the inferior court needs correction or setting aside, cannot correct or set aside the same himself, but has to make a reference to that effect to the High Court. The revi-sional power of the High Court which it may exercise Under Section 439 is, however, a discretionary one. It necessarily follows that no right of revision, as such, vests in the litigant, for no right can be postulated t0 vest in a litigant the exercise whereof may be dependant upon the discretion of the court. Where a right is granted in favour of a litigant by a statute, no court can refuse to him that right, once he has shown it to exist. It is true that a litigant is not precluded from challenging an order of an inferior court by filing a revision petition, But, that does not necessarily imply that he files the same in exercise of a statutory substantive right. His role is merely that of an mformant and the High Court may exercise its power even to his detriment. Furthermore, a right to file a revision petition must necessarily carry with it a right to be heard in support thereof, because unless a right of hearing is there, existence of a real right to go in revision cannot be inferred. Unlike Section 423 which enjoins upon the appellate court to hear the parties before disposing of an appeal, no party as laid down in Section 440 has any right to be heard by any court exercising its revisional powers. It is thus manifest that contrary to a right of appeal which is a substantive statutory right, a litigant does not have any right to go in revision. Section 439 read with Section 435 merely conserves the discretionary powers of the High Court which are to be exercised by it ex debito justitiae to insure the subordinate courts do not exceed their jurisdiction, or ignore the procedure established by law, or do not otherwise abuse their powers. My answer to the first question would be, therefore, in the affirmative.
Question No: 2
9. While enacting Sub-section (4-a) of Section 435, the Legislature did not define the expression "interlocutory order" and left it wide open to be interpreted by the courts.. It fell for their Lordships interpretation in a number of cases before the Supreme Court as well. The first case to be noticed is Mohan Lai Magan Lai Thakkar v. State of Gujarat . In that case the accused had filed a
revision petition challenging an order of the trial Magistrate directing a complaint under Section 205 IPC to be filed against him which order had been upheld by the Sessions Judge also. The High Court had dismissed the revision petition without going into its merits, but had granted a certificate for a further appeal to the Supreme Court under Article 134(n)(c) of the Constitution, Before the Supreme Court, a preliminary objection was taken that the High Court's order dismissing the revision, petition was not a final order, as it neither disposed of the complaint brought against the accused, nor did it otherwise determine the controversy between the parties, as such, the certificate granted by it was not competent. Their Lordships held that the controversy raised in the revision petition was distinct from that raised in the complaint. Whereas the controversy in the complaint was as to whether or not the accused had committed any offence the controversy raised in the revision petition was whether or not it was expedient in the interests of the justice to put him on trial. Since the High Court had put an end to the controversy by dismissing the revision petition, its order was final. The following observations made by their Lordships are pertinent: "The question as to whether a judgment or an order is final or not has been the subject matter of a number of decisions; yet no single general test for finality has so far been laid down. The reason probably is that a judgment or order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to part. The meaning of the two words 'final' and 'interlocutory' has therefore, to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply
10. The view taken in the aforesaid case was approved by the court in a later case reported as Amar Nath v. State of Haryana . In that case a complaint had been dismissed by the Magistrate without issuing a process to the accused. On revision the Sessions Judge, had reversed the orders of the Magistrate and directed further enquiry after which the Magistrate had issued process against the accused. A revision taken to the High Court against the order of the Magistrate was dismissed on the ground that the order was merely interlocutory in nature, as such, no revision lay against the same. Their Lordships overset the order of the High Court holding that as the order decided a serious question as to the right of the accused to be put on trial, it could not be said to be an interlocutory order. In order to determine as to whether or not an order was interlocutory in character the court laid down the test in the following words (Para 6).
...It seems to us that 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. 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. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie Under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot tee said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court.
11. A similar question arose in a still later case viz; Madhu Limaye v. State of Maharashtra . In that case the State of
Maharashtra had filed a complaint Under Section 500 IPC against Mr. Madhu Limaye in the court of Sessions Judge Greater Bombay, of which the latter had taken cognizance without the committal of the case by a Magistrate. The allegation was that Mr, Madhu Limaye had made some defamatory remarks against Mr. A. R. Antulay while the latter was holding the office of Law Minister of the State of Maharashtra. Mr. Madhu Limaye had questioned the jurisdiction of the Sessions Judge to try him inter alia on the ground that the alleged defamatory remarks not having been made in relation to Mr. Antulay's conduct in the discharge of his public functions, but purely in relation to his person, the Sessions Judge could not have taken cognizance of the offence without the committal of the case to him by a competent Magistrate, His contention was negatived by the Sessions Judge and the High Court of Bombav had dismissed his revision petition filed against the said order on the ground that it was an interlocutory order. Two contentions were raised before the Supreme Court on behalf of Mr. Madhu Limaye: one, that the order of the Sessions Judge was not an interlocutory order within the meaning of Sub-section (2) of Section 397 of the Central Code (1973) corresponding to Sub-section (4-a) of Section 435 of the Code, and two, that even if it were so, the same was revisable Under Section 482 of the Central Code which corresponds to Section 561-A of the Code. Reference was made to
(supra) wherein it was held that in case a revision in terms of Sub-section (2) of Section 397 was barred, the court would be powerless to revise that order in exercise of its inherent powers Under Section 482, and further, that where the court decided an important question of the accused being put on trial, one way or the other, the order was final and not merely interlocutory in nature. Their Lordships approved the second finding but did not approve the first and held that even though a revision Under Section 397(2) would be barred, the court could revise-an order in exercise of its inherent powers, in case the impugned order had either resulted in the abuse of the process of the court, or it otherwise required to be set aside in the interests of justice. This, in their Lordships opinion, was manifestly borne out from the words "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court..." occurring in Section 482. They followed the view taken by that court in R. P. Kapur v. State of Punjab that the High Court in exercise of its inherent
powers can quash a criminal proceeding even after the framing of charge, if the case falls under any of the three categories, viz:i) where there is a legal bar against the institution or continuance of the proceeding, (ii) where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, would not constitute the offence, and (iii) where, as distinct from its reliability or adequacy, there is no legal evidence at all to connect the accused with the offence charged. A similar view appears to have been taken in a still later case reported as Raj Kapoor v. State (Delhi Admn.) . Their Lordships however, did not agree with the view taken by Kania C. J. in S. Kup-puswami Rao v. King AIR 1949 FC 1:1948(49) Cri LJ 625) that a decision whichever way it was given will if it stands, finally disposes of the matter in dispute, and if given in the other way it will not, then the decision would be only interlocutory in character. They applied to interlocutory orders the test laid down in Baldev Das.s v. Filmistan for determining "a case decided" that a
case may be Said to be decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy, and approving the second fir ding of the court in (supra) held that an order which decides the important question of the accused's right to be put on trial, one way or the Cher, will be final order re-visable under Sub-section (1) of Section 397. Their Lordships observed :
.... One of the tests is "If the order in question is reversed would the action have to go on?" Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceedings as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. Applying the test of Kuppuswami's case AIR 1949 FC 1 :1948(49) Cri LJ 625) such an order will not be a final order. But applying the fourth test noted at p. 688 in Mohan Lai's case it would be a final order. The real
point of distinction, however, is to be found at page 693(of SCR :at p. 738 of AIR) in the judgment of Shelat J. The passage runs thus :
As observed in Ramesh v. Gendalal Motilal Patni,
the finality of that order was not to be judged by correlating that order with the controversy in the complaint viz: whether the appellant had committed the offence charged against him therein. The fact that the controversy still remained alive is irrelevant.
And again :
...We must, however, hasten to add that the majority decision in Mohan Lai's case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or not. taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lai's case. Yet, for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting tht 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).
12. The latest reported lecision of the Supreme Court on the point to be noticed is V. C. Shukla v. State through C. B. I. . Their Lordships albeit approved the view taken in
(supra) yet held that an order charge-sheeting an accused is in-lerlocutory in nature and laid down the following tests (at p. 33) for determining as to whether an order was final or interlocutory within the meaning of Section 397:
(1) That an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue, because, in our opinion, the term 'interlocutory order, in the Criminal Procedure Code has been used in a much wider sense so as to include intermediate or quasi-final orders ;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Article 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act, works serious injustice to the accused.
13. These decisions make it abundantly clear that the court did not accept the two extreme views; one that an order framing a charge would invariably be an interlocutory order, and the other, that such an order in all circumstances would be g iinal order. The test according to their lordships would be that in case the charge was attacked on the merits of the main controversy in the complaint viz. whether or not the accused had committed the offence, the order framing, the charge would be an interlocutory order. But, if the charge was attacked on a plea of the accused not correlated to any such controversy, which if accepted would put an end to his prosecution, then the order framing the charge would be a final order; the fact that the prosecution remained alive notwithstanding. It, therefore, follows that an order framing a charge cannot be assailed in revision Under Section 439 read with Section 435 on the ground that it is based upon misappreciation, insufficiency or even total absence of evidence, for the order in such a case would be for related to the main controversy viz. whether or not the accused has committed the offence and would be, therefore, an interlocutory order to which the bar of Sub-section (4-a) will be clearly attracted. In such a case, though the court would be powerless to revise the order in exercise of its powers Under Section 439 read with Section 435 even if it were to be assailed on the ground that there is absolutely no evidence to support the charge, it would yet be competent to quash the charge in exercise of its inherent powers Under Section 561-A in terms of the law laid down in (supra) for to allow the
court to proceed with the trial on such a charge would be manifestly unjust and tantamount to a sheer abuse of the process of the Court. Apart from the law laid down by their Lordships, the very fact that even the court framing the charge may itself modify the same during the pendency of the trial by taking recourse to Section 227 so as to conform it to the evidence brought on the record would show that such an order is not final, but merely interlocutory in nature. Cases wherein challenge is thrown to an order framing a charge on the ground, for instance, that the trial court lacks inherent jurisdiction to try the case, or that the trial has been commenced without obtaining a proper sanction, clearly fall in the second category, for in such cases the charge is not to stand or fail according to the merits of the main controversy, but on a plea independent of the same. With due respects to the learned Judges who constituted the Bench in Mohanlal Devdan-bhai Chowkshi v. J.S. Wagh 1981 Cri LJ 454, (Bom). I cannot persuade myself to take the view that an order framing a charge would invariably be a final order. The interpretation sought to be placed by them on the majority view taken in V. C. Shukla's case 1980 Cri LJ 690)(SC)(supra) and the distinction sought to be drawn by them between a case governed by the Code of Criminal Procedure and one governed by the Special Courts Act is, if I may say so with utmost respect, neither correct nor real. So long as the expression "interlocutory order" occurring in both the Acts remains undefined, its connotation in one Act cannot be different from its connotation in the other. My answer to the second question would be, therefore, as follows :
(i) The bar created by Sub-section (4-a) of Section 435 would be attracted to it, and the court would be powerless to revise an order framing a charge in exercise of its powers Under Section 439 read with Section 435, where the challenge to the order is based upon the merits of the main controversy, viz. whether or not the accused has been guilty of the offence charged.
(ii) Such a bar would not be, however, attracted to it, and the Court would be competent to revise an order framing a charge in exercise of its aforesaid powers, in case the challenge to the order is based upon a plea, which is independent of the main controversy, and which if accepted, would conclude the proceedings against the accused.
Question No. 3
14. No party has a right to have a witness examined Under Section 540. It can only draw the attention of the court by making a prayer to that effect. Whether or not a witness is to be examined under this section, the discretion entirely lies with the court, though it maybe obligatory on its part to summon the witness in case his evidence appears to it to be essential for the just decision of the case. Nevertheless, it -is the requirement of the court and not that of the party to see whether or not a witness is to be examined. Viewed thus, an order granting or refusing the prayer of a party to have a witness examined Under Section 540 cannot be said to have determined any right of the parties and consequently fails to acquire the flavour of a final order. It is an interlocutory order, pure and simple. I am not prepared to accept the proposition, which to me appears to be too narrowly stated, that unless the order brings an end to the proceeding in which it is made, it cannot be said to be a final order. This, in fact, was the connotation placed upon the expression "final order" in Kuppa-swami's case 1948(49) Cri LJ 625)(FC)(supra). But. it was not accepted by the Supreme Court in Madhu Limaye's (1978 Cri LJ 165) and V. C. Shukla's (1980 Cri LJ 690) cases (supra). The apparent conflict was, however, sought to be avoided by creating a third category of orders to be known as "intermediate orders" as would appear from the following observations made by his Lordship S. M. F. Ali, J-, expressing the majority view in V. C. Shukla's case 1980 Cri LJ 690 (706)(SO (supra)):
To sum up the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia, J. in the case of Madhu Limaye v. State of Maharashtra (1978 Cri LJ 165)(SC) clearly meant to convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secun; dum. Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Secundum. It is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term "interlocutory order" as used in Section 11(1) of the Act.
15. Refusal on the part of the court 'to afford an opportunity to the prosecution to adduce evidence in support of its case, closing complainant's evidence without complying with the mandatory provisions of Sub-section (2) of Section 252, turning down the request of the accused to appear as his own witness Under Section 342-A, or refusing to hear the appellant or his counsel in support of his appeal in terms of Section 423 are some of the instances where even though the proceedings are kept alive in which such orders are passed, the orders would yet be final orders, for the same would undoubtedly decide the important rights of the parties and would not be merely orders made for the progress of the particular proceeding. They would, on the other hand, tend to temporise the proceedings and thereby defeat the very, object of enacting Sub-section (4-a). My answer to the third question, therefore, would be that an order refusing to summon a witness1 Under Section 540 is an interlocutory order against which no revision would lie.
16. Let the cases now go back to the Registry for being placed for hearing on other points, if any, before an appropriate Bench.
A.S. Anand, J.
17. I agree.