Revanna and others Vs State of Karnataka and others

2. Heard Sri B.V. Acharya, Sri P.S. Rajagopal and Sri M.T. Vanaiah, learned Senior Counsel and other learned Counsel for petitioner/s in respective petitions and Sri Venkatesh S. Arabatti, learned Counsel for Lokayukta and Sri Munigangappa, learned High Court Government Pleader for the State.

3. These petitions may be categorised into two batches. One, in which the petitioners are alleged of commission of offences punishable under the Prevention of Corruption Act, 1988 (''PC Act'' for short) as also Indian Penal Code, 1860 (''IPC'' for short) and another in which they are alleged of commission of offences other than PC Act. The specific offences alleged against the petitioners in respective petitions are as under:

4. The finite consideration in all these petitions is their maintainability. Therefore, detailed narration of facts may not be necessary. However, conspectuses of necessary facts are petitioners-accused of certain offences sought for discharge before the Trial Courts. Their prayers have been rejected and the respective Trial Courts have proceeded further to frame charges, Feeling aggrieved, they have filed these revision petitions.

5. Registry has raised an objection with regard to maintainability of these petitions in view of Bar contained in Section 397(2) of Cr. P.C.

6. The arguments advanced by the learned Counsel for the petitioners may be summarised as follows:

(i) that an order passed by the Trial Court declining to discharge an accused is not an interlocutory order;

(ii) that the objection raised by the registry with regard to maintainability of a revision petition is no more res integra. It has been settled by various pronouncements of the Hon''ble Supreme Court holding that an order directing framing of charge is not an interlocutory order and therefore, the revision petitions are maintainable. Hence, applying the doctrine of ''stare decisis,'' it may be held that a revision petition is maintainable;

(iii) that the judgment in the case of V.C. Shukla v. State through C.B.I [1980 Supp. SCC 92: AIR 1980 SC 962] is not applicable to the facts of these cases because, in the said case, the Hon''ble Supreme Court was considering maintainability of an appeal under Section 11(2) of the Special Court''s Act, 1979 which was enacted for a special purpose for speedy disposal of cases and the Special Court was headed by a sitting Judge of the High Court;

(iv) that the judgment in the case of V.C. Shukla is rendered keeping in view the purpose and intent of a Special Act and to ensure that flooding of cases is avoided to the Supreme Court;

(v)though sub-section (2) of Section 397 of Cr. P.C. places an embargo from entertaining a revision petition, all orders cannot be classified only under two categories namely, ''interlocutory'' and ''final''. There is a third kind of order namely, ''intermediate order'' as defined in V.C. Shukla''s case;

(vi) that the judgments in the cases of Amar Nath and Others v. State of Haryana and Another (1977) 4 SCC 137 : (1978) 1 SCR 222 and Madhu Limaye v. State of Maharashtra(1977) 4 SCC 551, cover the point involved in these petitions. It is held by the Hon''ble Supreme Court in V.C. Shukla that those cases were correctly decided;

(vii) that in the case of K.K. Patel and Another v. State of Gujarat, and Another, (2000) 6 SCC 195 the Hon''ble Supreme Court after applying a ''feasible test'' has held that an order rejecting a prayer to discharge is revisable. The test applied was whether by upholding the objections raised by a party, would it result in culminating the proceedings, and if so, an order passed on such objections would not be interlocutory in nature.

(a)Amar Nath and Others v. State of Haryana and Another, (1977) 4 SCC 137;

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

(c)K.K. Patel and Another v. State of Gujarat and Another, (2000) 6 SCC 195

(d) M/s. Bhaskar Industries Limited v. M/s. Bhiioani Denim and Apparels Limited and Others (2001)7 SCC 401

(e)Vivek Gupta v. Central Bureau of Investigation and Another, (2003) 8 SCC 628;

(f)P.V. Amarnath Prasad v. State by CBI/ACB, Bangalore, 2012(4) Kar. L.J. 483

(g) An unreported judgment dated 3-11-2016, in the case of Sri. Katta Subramanya Naidu v. State of Karnataka 2017 (1) Kar. L.J. 324, in Cri. R.P. No. 432 of 2013 connected with Cri. P. No. 2313 of 2016

(h) In the case of Smt. A.C. Kamakshi v. Union of India by Inspector of Police, CBI, ACB, Bangalore in Cri. R.P. No. 703 of 2009, dated 24-2-2010

(i) Haryana Land Reclamation and Development Corporation Limited v. State of Haryana (2004)13 SCC 269

(j) Poonam Chand Jain and Another v. Fazru (2001)13 SCC 269

(k) K.P. James and Others v. Inspector of Police, CBI, in Cri. R.P No. 1245 of 2015

(L) Krishena Kumar v. Union of India and Others (1990)4 SCC 207

(m) Rajendra Kumar Sitararm Pande and Others v. Uttam and Another [(1999)3 SCC 134].

9. Sri Venkatesh S. Arabatti, learned Counsel appearing for Lokayukta/ACB contesting the petitions, submitted that the issue with regard to maintainability of these cases involving PC Act has been decided by the Hon''ble Supreme Court in the case of V.C. Shukla.

10. He placed reliance on the judgment in the case of R.C. Sabharwal v. Central Bureau of Investigation (2010) 166 DLT 362 and pointed out that the Hon''ble Delhi High Court, after considering the authorities in the cases of Amar Nath, Madhu Limaye and K.K. Patel, has held that a revision petition is not maintainable.

11. Sri Arabatti further submitted that in the light of law declared in V.C. Shukla, the ratio in the judgments rendered by this Court in the cases of AC. Kamakshi, P.V. Amarnath Prasad and Katta Subramanya Naidu are not applicable.

12. With reference to P.V. Amarnath Prasad''s case, he pointed out that this Court has considered the minority view in V.C. Shukla''s case which is contrary to the majority view and hence may not be considered.

13. With reference to Katta Subramanya Naidu''s case, he submitted that this Court has placed reliance on Jarnail Singh v. State of Rajasthan (1992 Cri. L.J. 810) decided by the Hon''ble Rajasthan High Court on the premise that it is rendered by the Hon''ble Apex Court. Hence the ratio in Katta Subramanya Naidu''s case is not applicable to the cases on hand.

14. Replying to the contention with regard to stare decisis, Sri Arabatti, submitted that in the cases of Madhu Limaye and Amar Nath, the issue involved was not ''framing of charges''. Therefore, in the light of authoritative pronouncement in V.C. Shukla''s case, which is directly on the point, other judgments are not binding.

15. Learned HCGP submitted that revision petitions are maintainable except in cases where offences under PC Act are alleged.

16. I have given my careful consideration to the rival contentions urged by the learned Counsel on both sides, perused material papers and the authorities cited.

17. In the light rival contentions, following points arise for consideration of this Court:

(i) Whether an order of framing charge is an interlocutory order?

(ii) If so, whether a revision petition is maintainable in view of Bar contained in Section 397(2) of Cr. P.C.?

19. The Hon''ble Supreme Court in the said judgment considered several authorities, Dictionaries and Corpus Juris Secundam and summarised as follows:

"24. 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, (1977)4 SCC 551 : 1978 SCC (Cri.) 10 : (1978)1 SCR 749, dearly 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 Secundum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus juris Secundum. It is obvious that an order 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. Wharton''s Law Lexicon (14th Edn., p. 529) defines interlocutory order thus:

An interlocutor order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties.

(Emphasis supplied)

20. It is relevant that after noticing the definition given to ''framing of charge'' as an ''intermediate order'' in Madhu Limaye, their Lordships ruled that such an order falls squarely within the ordinary and natural meaning of interlocutory order''.

21. After considering the judgments in the cases of S. Kuppuswami Rao v. The King(1947) 1 FCR 180 : AIR (36) 1949 FC 1], Mohammad Amin Brothers Limited and Others v. The Dominion of India and Others, AIR 1950 FC 77 five propositions were deduced. Applying the said propositions, the Hon''ble Apex Court has further held as follows:

"35. Applying these tests to the impugned order we find that the order framing of the charges is purely an interlocutory order as it does not terminate the proceedings, but the trial goes on until it culminates in acquittal or, conviction. It is true that if the Special Court would have refused to frame charges and discharged the accused, the proceedings would have ''terminated'' but that is only one side of the picture. The other side of the picture is that is if the Special Court refused to discharge the accused and framed charges against him, then the order would have been interlocutory because the trial would still be alive."

(Emphasis supplied)

22. Finally, it is held as follows:

"47. Thus, summing up the entire position the inescapable conclusion that we reach is that giving the expression "interlocutory order " its natural meaning according to the tests laid down, as discussed above, particularly in S. Kuppuswami Rao v. The King, 1947 FCR 180: AIR 1949 FC 1 : 1949 Cri. L.J. 625 (FC) and applying the non obstante clause, we are satisfied that so far as the expression "interlocutory order" appearing in Section 11(1) of the Act is concerned, it has been used in the natural sense and not in a special or a wider sense as used by the Code in Section 397(2)......."

(Emphasis supplied)

23. It was argued on behalf of the petitioners that their cases are covered by the authorities in the cases of AmarNath and Madhu Limaye. On the other hand, it was argued by the learned Counsel for Lok-Ayuktha that in the said two cases, framing of charge was not the main issue. The manner in which the said two cases came up before the Hon''ble Supreme Court has been explained in the concurring judgment of Hon''ble Mr. Justice D.A. Desai (as his lordship then was) in V.C. Shukla, which reads as follows: (SCC at p. 145)

"100. In Amar Nath and Others v. State of Haryana and Another, (1977) 4 SCC 137:1977 SCC (Cri) 585 : (1978) 1 SCR 222, the matter came before this Court against an order of the Magistrate issuing summons upon a complaint filed by the complainant which the High Court declined to quash in a petition filed by the accused under Sections 482 and 3.97 of the Criminal Procedure Code, 1973 ("Code" for short).

104. In Madhu Limaye v. State of Maharashtra, (1977)4 SCC 551 : 1978 SCC (Cri.) 10 : (1978) 1 SCR 749, this Court was concerned with a question Whether an order repelling a challenge to the jurisdiction of the Court was an interim order not amenable to the revisional jurisdiction of the High Court under Section 397. There is some dispute as to what was the order challenged before the High Court in this case "

It is therefore, incorrect to contend that the decision in Madhu Limaye case, (1977) 4 SCC 551 : 1978 SCC (Cri.) 10 : (1978) 1 SCR 749 is an authority for the proposition that framing of the charge is not an interlocutory order but it is such an intermediate order as not to fall within the ambit of interlocutory order. There was no challenge to the framing of the charge but there was a challenge to the jurisdiction of the Court to entertain the complaint."

(Emphasis supplied)

24. Therefore, learned Counsel for the Lokayukta is right in his submission that the framing of charges was not the issue under consideration in Amarnath and Madhu Limaye. In the leading judgment in V.C. Shukla, the Hon''ble Supreme Court has held that the ''locus classicus'' so far as the nature of interlocutory order is concerned, it is S. Kuppuswami Rao v. The King. The Apex Court has precisely held as follows: (SCC p. 119)

"30...................... Thus, it was pointed out that the concomitant of a final order would be the same whether it is a civil case or a criminal case and the definition given by the English Judges would apply to both. This case was noticed in S. Kuppuswami Rao v. The King, 1947 FCR 180 which, in our opinion, is a leading case on the subject or, if we may say so, it is the locus classicus so far as the nature of an interlocutory order is concerned."

(Emphasis supplied)

25. With regard to S. Kuppuswami and Mohammad Amin''s cases, the Hon''ble Supreme Court considered if the said two authorities were either overruled or departed from and held as follows: (SCC p. 149)

"106..........But the test remains unaltered that every interlocutory order merely because it disposes of an aspect, nay a vital aspect in the course of a pending proceeding even adversely affecting a party for the time being would not be something other than interlocutory."

(Emphasis supplied)

26. Thus, a careful analysis of above leads to following indubitable inferences:

(i) that in the case of Amarnath, issue under consideration was an order passed by the learned Magistrate issuing summons;

(ii) that Madhu Limaye is not authority for the proposition that framing of charge by itself is not an interlocutory order;

(iii) that ''locus classicus'' so far as the nature of interlocutory order is concerned, it is S. Kuppuswami Rao v. The King

(iv) that tests prescribed in S. Kuppuswami and Mohammad Amin were not departed from.

"The question then is what is the meaning of "judgment decree or final order of a High Court" in this section? The expression "final order" has, been judicially interpreted and its meaning is now well-settled. In Salaman v. Warner, [(1891)1 QB 734], Lord Esher AIT. discussed the meaning of the expression "final order" in these terms: "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, hut, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory ""

(emphasis supplied)

28. Thus, it is significant that, once it is held that the test prescribed in S. Kuppuswami''s case is not departed from, then an order to qualify itself as a ''final order'' must pass Lord Esher''s test. That means a decision given either way should terminate the proceedings. In the petitions on hand, if the petitioners'' prayers for discharge were allowed, then they would have concluded the proceedings. But their dismissal has kept the trials in progress. Therefore, the said orders do not pass Lord Esher''s test. After considering other authorities in the cases of State of Karnataka v. L. Muniswamy and others (1977) 2 SCC 699 : 1977 SCC (Cri.) 404 : (1977)3 SCR 113 and Century Spinning and Manufacturing Company Limited v. State of Maharashtra 1972)3 SCC 282 : 1972 SCC (Cri.) 495 : AIR 1972 SC 545, it was held in unambiguous terms by the Hon''ble Supreme Court in V.C. Shukla''s case that an order framing charge would unquestionably an interlocutory order, by holding thus: (SCC p. 151)

"111..........., the order framing the charge even after applying the ratio of the later decisions would not be an order other than an interlocutory order. It would be unquestionably an interlocutory order."

(Emphasis supplied)

29. The next contention urged was that the ratio in V.C. Shukla''s case would not be binding as the said case was under the Special Courts Act containing a non-obstante clause and the Court was headed by a sitting judge of a High Court. The issue involved is one of principle whether the order of framing charge is an interlocutory order or a final order and that squarely depends on whether it passes Lord Esher''s test. Therefore, the said contention is hardly relevant. But suffice to record that Section 19(3) of the PC Act also contains a non obstante clause as in the case of Special Courts Ad, 1979.

30. At this juncture, it may be profitable to notice that the very issue with regard to maintainability of petitions under the PC Act came up for consideration before a Division Bench of Hon''ble High Court of Delhi in the case of Anur Kumar Jain v. CBI and several connected cases (precisely 37 cases) reported in 2011 SCC On Line Del. 1574. After considering various authorities including the judgments in the cases of Madhu Limaye and K.K. Intel, the reference was answered holding that an order framing charge under the Prevention of Corruption Act, 1988 is an interlocutory order.

31. In the case of K.K. Patel, the Lord Esher''s test was not applied. In the case of Bhaskar Industries Limited, it held that it was not permissible for the appellant therein to raise an issue for the first time in an appeal with regard to the nature of the order whether it was interlocutory. It was also held that in the absence of other material, it was difficult to decide whether the order impugned therein was an interlocutory order. In the case of Vivek Gupta, the core question under consideration was whether the appellant therein could be charged and tried together with other two accused by the Special Judge under the provisions of PC Act. In the case of Haryana Land, it is held that an order of discharge on the basis of a police report is not. an interlocutory order relying on the judgments in the cases of Amar Nath and Madhu Limaye. In the case of Rajendra Kumar, the issue involved was whether an order directing issuance of process is an interlocutory order. In the case of Poonam Chand, the matter was remitted back to consider the legality of the order directing issuance of process. Hence all citations which run counter to the larger Bench ruling in the case of V.C. Shukla, with utmost respect, would not be binding (see Smt. Somawanti v. State of Punjab AIR 1963 SC 151).

32. The remaining submission for consideration is with regard to doctrine of stare decision. It was argued by Sri B.V. Acharya that this Court having taken a view that a revision petition is maintainable in the cases of AC. Kamakshi, Amar Nath, Kumar and Katta Subbramanya Naidu, the same may be maintained. Learned Counsel for the Lok-ayukta relying on the judgment of this Court in the case of Panchaxari Shidramappa Yeligar v. Shiggaon Taluka Shikshana Samithi and Others reported in ILR 1998 Kar. 3748, contended that the judgments in the cases of K.K. Patel, Bhaskar Industries and other cases may be considered as per incuriam. Further, he was right in contending that in the case of P.V. Amarnath Prnad, this Court relied upon the minority view in V.C. Shuka''s case. He was also right in contending that the authority in Jarnail Singh v. State of Rajasthan, 1992 Cri. L.J. 810 relied upon by this Court in Katta Subramanya Naidu''s case was delivered by the Hon''ble Rajasthan High Court and not the Apex Court. In the case of AC. Kamakshi, V.C. Shukla''s judgment is not cited.

33. The binding nature of judgments has been explained by the Hon''ble Supreme Court in the case of State of Uttar Pradesh v. Synthetics and Chemicals Limited (1991)4 SCC 139, which reads as follows:

"40.............. The Bench held that, ''precedents sub silentio and without argument are of no moment''. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor proceeds on consideration of issues cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141"

(Emphasis supplied)

34. Therefore, the above discussion leads to an inescapable conclusion that as held by the Hon''ble Supreme Court in the case of V.C. Shukla supra, an order framing charge in both categories of cases is an interlocutory order. The said judgment is by a larger Bench and hence, binding. Resultantly, a revision petition shall not be maintainable in view of express Bar contained in sub-section (2) of Section 397 of Criminal Procedure Code, 1973. The points framed for consideration are accordingly answered.

35. Before parting with these cases, the assistance rendered by the learned Advocates and the Senior Counsel in deciding these cases is placed on record with appreciation.

36. In the result, the following:

ORDER

The Revision Petitions are dismissed as not maintainable.