K.L. Sachdeva Vs Rakesh Kumar Jain

B.D. Agrawal, J.@mdashThe opposite party is engaged in publication of books under the name and style of N.J. Publishers, Varanasi. The applicant carries on the business in printing at New Delhi under the name of M/s. Skylark Printers. The allegations of the opposite party in the complaint filed by him on July 31, 1979, in the court of the Chief Judicial Magistrate, Varanasi, giving rise to these proceedings are that he bad asked the applicant to print and bind 1, 100 copies of his publication, namely, Indian Mythology. The opposite party had also told the applicant that the latter was to obtain instructions from M/s. Bhartiya Vidya Prakashan, Delhi Branch, New Delhi, who are the sole distributor and agent for and on behalf of the opposite party. The prints were to be handed over to the said distributor at New Delhi. The applicant, it was further alleged, handed over 300 copies only upto January 22, 1977, but not the rest despite notice given by the opposite party on January 22, 1977. On September 6, 1978, it is further stated the accused met the opposite party by chance in Varanasi. The complainant asked him for the remaining copies which the accused denied. On February 19, 1981, the Judicial Magistrate II, Varanasi, directed charge to be framed against the applicant for an offence u/s 406, IPC. It was observed that no case was made out for offence u/s 420/427, Penal Code. The charge was framed accordingly against the applicant for offence u/s 406, Penal Code on April 14, 1981. Aggrieved, he filed this application u/s 482, Code of Criminal Procedure, 1973.

2. Learned Counsel for the opposite party raised a preliminary objection. It was contended that for the charge framed against the accused for offence u/s 406, Penal Code, he could have filed a revision u/s 397(1) of the Code and in view of the alternative remedy thus available the inherent powers could not be invoked. The submission for the applicant is that revision could not lie since the impugned order is interlocutory, and not final.

3. Sub-section (2) of Section 397 enacts that 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 proceedings. No such provision existed in the Code of Criminal Procedure, 1898. As appearing from the Objects and Reasons of the Code, this provision was introduced because it was found that the powers of revision against interlocutory orders had been one of ''the most contributing factors'' in the delay of disposal of criminal cases. The expression ''interlocutory order'' is not defined in the Code. The settled view is that, in the context this expression has to be given ''a broad meaning'' and ''a very liberal construction'' so as to achieve the object of the Act without interfering with the fairness of the trial - V.C. Shukla Vs. State through C.B.I., at pages 966/970. In Block''s Law Dictionary, 5th edition (1977) at page 731 ''interlocutory'' has been defined thus:

Provisional, interim; temporary; not final; Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.

4. ''Final decision'' is defined at page 567 as meaning "judgment or decree which terminates action in Court which renders it. One which settles rights of parties respecting the subject matter of the suit and which concludes them until it is reversed or set aside". Similar is the definition given in Webster''s Third International Dictionary, Vol. II and Stround''s Judicial Dictionary (I Vth edition, Vol. 3).

5. At the stage of framing the charge, as in the instant case, the Court applies its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charge substantially affects the person''s liberty; see, Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, , Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker and Another, . All the same, it is manifest that the order framing the charge does not finally set the controversy at rest. The action is kept alive. The charge represents formulation in writing of specific accusations made with definiteness and communicated to the accused so that he may defend himself. Framing of charge represents only a stage in the course of the trial without bringing the chapter to a close.

6. In Amar Nath and Others Vs. State of Haryana and Another, the police bad submitted final report u/s 173 of the Code after investigation. The Judicial Magistrate accepted the report; a revision against this order was dismissed by the Sessions Judge. The informant, thereafter, lodged complaint; the trial Magistrate dismissed this as not disclosing a case to proceed with; the Sessions Judge, however, accepted revision filed by the complainant; summons were issued, thereafter, to the accused by the Magistrate. The High Court dismissed the revision filed by the accused (in limine) being of the view that the order was interlocutory. It is in the light of these ''peculiar facts'' of that case that the Supreme Court held that the order summoning the accused was not an interlocutory order but a matter of moment which decided an important aspect of the trial. This was reaffirmed by their Lordships in Madhu Limaye v. State of Maharastra 1978 AWC 96 SC.

7. In the case of Madhu Limaye (supra), the Appellant challenged the jurisdiction of the Court on the ground chiefly that the allegations made by him against Sri Antulay were in relation to what he had done in his personal capacity and not in his capacity of discharging his functions as a Minister. This, in other words, was not a ground directed against the controversy upon its merits; it was instead a ground going to the root of the matter but not founded on the merits of the case. In the event of the objection being sustained, the prosecution will undoubtedly have been concluded. Untwalia, J. speaking for the Court placed the order framing charge against the accused u/s 500 IPC in the category of an intermediate order - neither interlocutory nor final. It was held that the test formulated by the Federal Court in AIR 1949 1 (Federal Court) could not be applied literally and it could not be held that such an order is interlocutory merely because it is not final. Referring to Mohan Lal Magan Lal Thacker Vs. State of Gujarat, the ''real point of distinction'' was noticed as under in the words of Shelat, J.:

As observed in Ramesh and Another Vs. Seth Gendalal Motilal Patni and Others, the finality of that order was not to be judged by co-relating that order with the controversy in the complaint, viz., whether the Appellant had committed the offence charged against him therein. The fact that that controversy still remained alive is irrelevant.

8. It is in this context that Untwalia, J. laid down in Madhu Limaye that "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) ". This has not been regarded an authority for the proposition that framing of the charge is not an interlocutory order and that it is in every case an intermediate order as not to fall within the ambit of interlocutory order (see observations of Hon''ble Desai, J. in the concurring judgment in V.C. Shukla Vs. State through C.B.I., .

9. In V.C. Shukla''s case (supra) the majority of the Constitution Bench speaking through Hon''ble Fazal Ali, J. followed the decision AIR 1949 1 (Federal Court) which was described as locus classicus so far as the nature of an interlocutory order is concerned. In Salaman v. Warner (1891) I QB 734, it was pointed, Lord Esher propounded the test that if the decision of the Court "Whichever way it is given" will, if it stands, finally dispose of the matter in dispute, then the decision is final. On the other hand, "if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on", then it is not final, but interlocutory. In Bozson v. Albunchan Urban District Council (1903) I KB 547 , the test adopted was whether the judgment or order finally disposes of the rights of the parties. The test propounded in these two cases received approval of the Federal Court in AIR 1939 43 (Federal Court) in S. Kuppuswami Rao Kania, C.J. relying upon these and other precedents took the view that a final order has to be interpreted in contradistinction to an interlocutory order the test being whether the order finally disposes of the rights of the parties. This was followed in Mohammed Amin Bros Ltd. v. Dominion of India AIR 1950 FC 77. The majority view in V.C. Shukla''s case is 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. In the Code this term is used in a much wider sense so as to include even intermediate or quasi final orders (page 963). As in civil matters an order is interlocutory if it does not adjudicate upon some right or obligation of the parties in controversy.

10. Learned Counsel for the opposite party submitted before me that in case the charges were not framed against the accused, that would have terminated prosecution and hence the order be not treated as interlocutory. This, to my mind, reflects an incorrect approach to the issue. The true test is whether the decision whichever way it is given, will, if it stands, finally dispose of the matter in dispute. This test is not fulfilled because there being the order one way viz., framing the charge, the controversy is kept alive. In the words of Fazal Ali, J.:

...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 if the Special Court refused to discharge the accused and framed charges against him, then the order would be Interlocutory because the trial would still be alive", (emphasis mine - herein in italics).

11. These decisions of the Supreme Court came up for consideration recently before a Division Bench in S.K. Mahajan and Etc. Vs. Municipality, . It was held that the decisions of the Supreme Court make it clear that the Court did not accept the extreme views, namely that an order framing a charge would invariably be an interlocutory order or that such an order in all circumstances would be a final order. The test, according to their Lordships, would be whether in case the charge was attacked on the merits of the main controversy in the complaint as to 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 co-related to any such controversy, which if accepted would put to an end to his prosecution, then the order framing the charge would be a final order, the fact that the prosecution remained alive notwithstanding. With respect I am in agreement with this since, in my opinion, this correctly interprets the views recorded by the Supreme Court in cases mentioned above.

12. Formulation of charge in a criminal case has been held to be an interlocutory order in other cases also by different High Courts: See, for instance, Biswanath Agarwalla and Others Vs. The State, , Dhanraj Jain and Others Vs. B.K. Biswas and Others, ; M/s Mohanlal Devdanbhai Chokshi and others Vs. J.S. Wagh and another, ; Gurnam Singh v. State of Rajasthan 1977 CriLJ 239 (Rajasthan) : 1981 CriLJ 89 (Madras);; State Vs. Mohd. Zaman and Others, . In Indra Deo Pandey v. Smt. Bhagwati Devi 1981 AWC 314 a Division Bench of this Court held that an order of attachment under the emergency powers of Section 146(1) of the Code is interlocutory. In Municipal Corporation of Delhi v. Girdhari Lal 1981 ACR 161 (SC) the impugned order was of discharge and it was held that since this terminates the proceedings, a revision was maintainable against such an order.

13. Applying the test referred to above, it will be observed that in this case the plea chiefly raised for the accused before the learned Magistrate was that there was no entrustment made to him and hence an essential ingredient for the offence of criminal breach of trust u/s 406 Penal Code does not exist. This obviously is co-related to the controversy on merits and thus the order dated April 14, 1981, framing the charge for offence u/s 406 IPC against the accused is clearly interlocutory. This could not be agitated in revision u/s 397(1) of the Code.

14. Upon merit, learned Counsel for the accused submitted that the complaint or the relevant material placed before the court does not indicate entrustment to him and since that constituted an essential ingredient of the offence of criminal breach of trust as defined in Section 405, IPC no case can be said to be made out prima facie against him. I have gone through the complaint and the preliminary statements recorded in support thereof as well as the notice dated 22-1-1977 given to the accused by the complainant. They suggest that the complainant placed order with the accused for printing and binding of 1, 100 copies of Indian Mythology. In paragraph 6 of the counter-affidavit filed by the opposite party, it is stated also in express terms that the opposite party placed an order with the accused for printing 1, 100 copies of the said book. In his affidavit, as appearing from paragraph 7, the applicant also averred that there was no supply of paper or other material to him by the opposite party for the purpose of printing being done. As against this the counter affidavit does not show that any such thing was entrusted to the accused for the purpose. Neither in the compliant nor in the statements or the said notice it is averred that the accused was entrusted with the manuscript and he did not return the same nor is it said that he was given paper or other material in this connection. On September 18, 1972, the accused submitted the statement of accounts to the complainant which is Annexure ''II'' to the complaint. In this statement of accounts the accused referred to three bills given by him for the total sum of Rs. 5,117.23. He acknowledged receipt of the sum of Rs. 5,000/- as earnest as contended also by the complainant and it is argued for the applicant that there is a sum of Rs. 117.23 standing as due to him. The contention, therefore, has been that he has accounted for the receipt of Rs. 5,000/- referred to by the complainant. It was argued by the opposite party that the applicant printed 1100 copies but he did not hand over the same except 300 to the complainant. This is not to be found clearly narrated in the relevant documents, but assuming for the sake of argument that there is such an averment for the complainant done in the papers, there still does not arise to case of entrustment made to the accused. It is well settled that the property which becomes the subject matter of the criminal breach of trust remains in the ownership of the owner, but is placed in the hands of another who becomes its trustee and on his dishonest misappropriation thereof conversion to his own use or disposal in breach of any direction or law prescribing the mode in which the trust was to be discharged, or of any legal direction, express or implied, made regarding the discharge of such trust, the provisions of Sections 405 and 406 would be attracted, but not otherwise. At best the case put forward by the complainant in the instant case might be considered to be as of breach of contract; the dispute is in essence, it would appear, civil in nature. The sum and substance is that the applicant was required by the opposite party under a contract to print and hand over certain number of copies of the book and in breach of the same, the accused did not make available 800 copies though he passed on 300 copies alright. Taken on its face, this may not constitute an offence u/s 406 of the Penal Code.

15. For the applicant accused it was urged also that the prosecution of the applicant for the offence u/s 406 is barred by limitation. The offence is punishable with imprisonment for either description for a term which may extend to three years or with fine or with both. The limitation for such a case is three years as provided in Section 468(2)(c), Code of Criminal Procedure. To constitute the offence within the meaning of Section 405, IPC there has to be the entrustment and also dishonest misappropriation or conversion to his own use or dishonest use or disposal of the property in violation of any direction of law or of any legal contract express of implied. The breach allegedly took place on or after January 22, 1977 when 300 copies were given to the complainant, but not the rest. Whether or not the complainant succeeds in establishing the averment is a different question altogether. The fact remains that complaint being filed on July 31, 1979, the complaint is not beyond the prescribed period of limitation.

16. It was next urged that, in view of Sub-section (4) of Section 181 of the Code, the prosecution could not be had in the criminal court at Varanasi. According to Sub-section (4) the offence of criminal breach of trust may be tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject matter of the offence was received or retained, or was required to be returned or accounted for, by the accused person. The accused is located in New Delhi. The complainant''s case has through out been that he was to receive instructions from M/s. Bhartiya Vidya Prakashan, Delhi Branch, the sole distributor for the opposite party and also that on being printed the books were to be handed over to the said sole distributor. From the averments in the complaint, supporting statements or the notice it is not made out that the offence took place within the local limits of the criminal court in Varanasi, or that the property was retained within this area or that the same was required to be returned within this area. There is consequently force in the contention for the applicant that the criminal court in Varanasi does not have territorial jurisdiction for the trial of the alleged offence

17. For the reasons abovementioned, the application succeeds and is allowed. The proceeding in Criminal Case No. 346 of 1979 pending in the court of the Judicial Magistrate II, Varanasi, against the accused applicant for the offence u/s 406, Penal Code is quashed.