Introduction:

The Hon’ble Supreme Court of India recently on 07/05/2021 in
Sanjay Kumar Rai v State of Uttar Pradesh and Another¹
 reiterated that orders framing charge or refusing discharge
are neither interlocutory nor final in nature and are therefore not
affected by the bar of Section 397(2) of Code of Criminal
Procedure, 1973 (“CrPC”).

Section 397(2) of CrPC bars the power of the Courts to exercise
revision in relation to any interlocutory order passed in any
appeal, inquiry, trial or other proceeding. The term interlocutory
order has not been defined in the CrPC. The term interlocutory
order has been used in a very restrictive sense and not in any
broad or artistic sense.² It may be defined as orders which
are purely interim or temporary which do not decide or touch upon
the important rights or the liabilities of the parties.

Facts:

A criminal appeal was filed challenging the order passed by the
High Court of Judicature at Allahabad wherein the criminal revision
against the order refusing to discharge the appellant has been
dismissed.

Charge sheet came to be filed against the appellant/accused for
offences under Section 504 and Section 506 of the Indian Penal
Code, 1860 (“IPC”) based on the statement of the
complainant and statements of two witnesses on affidavit. However,
the version of the appellant was never taken on record to consider
his side of the story. The Learned Court of Chief Judicial
Magistrate took cognizance of the offence on 08/11/2012.

The appellant filed an application for discharge under Section
239 of CrPC on the grounds that he has been falsely implicated; the
allegations of telephonic threats do not constitute an offence
under Section 504 and 506 of the IPC and that the investigation was
not proper. The Court of Chief Judicial Magistrate (‘CJM’)
rejected the application of the appellant inter alia on the ground
that there was sufficient evidence on record to frame charge
against the accused amongst others.

The appellant being aggrieved by the rejection order filed a
Criminal Revision Petition before the High Court seeking reversal
of CJM’s Order. The High Court relying on the decision of
Asian Resurfacing of Road Agency Private Limited versus Central
Bureau of Investigation³ observed
that order of discharge can be interfered only in the rarest of
rare cases only to correct the patent error of jurisdiction. The
High Court held that since there was no patent error of
jurisdiction, the revision petition was dismissed.

Decision

The Apex Court distinguished the Asian Resurfacing Case
which was relied by the High Court limiting the scope of revision
to jurisdictional errors on the ground that in the said case
challenge was to the charge framed under Prevention of Corruption
Act, 1988 (“POCA”) and the said judgment itself holds
that not only POCA was a special statue but also contains a special
bar for exercise of revisional jurisdiction under Section 19.
Further, the court also held that in Asian Resurfacing Case this
court relied on Madhu Limaye v State of Maharashtra⁴ wherein it
was observed as follows:

The Court further relying on Madhu Limaye Case held
that orders framing charges or refusing discharge are neither
interlocutory nor final in nature and are therefore not affected by
the bar of Section 397(2) of CrPC the court further acknowledged
that High Courts have the inherent jurisdiction to prevent abuse of
process of court or to secure the ends of justice.

Supreme Court held that the discretion have to be invoked
carefully and judiciously however, a complete hands off approach is
not recommended. Courts have to interfere in exceptional cases in
which there is a likelihood of serious prejudice on the rights of
the citizen like when the contents of a complaint or the material
on record is a brazen attempt to persecute an innocent person, in
which it becomes imperative on the courts to prevent the abuse of
process of court.

The Court relied on Union of India v Prafulla Kumar
Samal⁵ and held that while deciding the
discharge applications trial courts are not supposed to merely act
as post office and has to consider the broad possibilities, total
effect of evidence and documents produced and the basic infirmities
on record and have to examine whether there is sufficient material
on record to try the suspect.

The Apex Court while observing that the High Court have
committed jurisdictional error by not deciding the case on merit
and overlooking the fact that discharge is a valuable right
provided to the accused, remanded the case back to the High Court
to decide the matter in accordance with the settled position of
law.

Concluding Remarks:

The Supreme Court reiterated that order framing charges or
refusing discharge are neither interlocutory nor final in nature
and thus the bar under Section 397(2) would not apply. The High
Courts also have the inherent powers to prevent the abuse of
process of court or to secure the ends of justice in cases where
there has been likelihood of prejudice to the rights of the citizen
and in cases where there is brazen attempt to falsely implicate an
innocent person.

Further, Supreme Court also cautioned the Trial Courts to not to
act as mere post offices while dealing with discharge applications
and to examine whether there exist sufficient grounds to try the
suspect.

Footnotes

1.
Criminal Appeal No 472 of 2021.

2. Amar
Nath and others v State of Haryana and Another (1977) 4 SCC
137

3. (2018)
16 SCC 299.

4. 1977)
4 SCC 551.

5. (1979)
3 SCC 4

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