ORDER
K. Sreedharan, J.
1. Petitioners were office bearers of the Ambalapuzha Taluk S.N.D.P. Union. They published a notice exhorting the members of the union to contribute liberally towards a ten lakh fund for the purchase of 3.04 acres of property and buildings belonging to the Luther Mission, for the union. On the allegation that the amount so collected was misappropriated and thereby committed breach of trust, a private complaint was filed against the petitioners. Complainant, respondent in this petition, gave evidence as P.W. 1. Other ten persons were also examined in court. Thereupon learned Magistrate framed charges against the petitioners for offence Under Sections 408 and 409 read with Section 34 of the Penal Code. Petitioners challenge the order framing charge by preferring this revision petition.
2. Learned counsel representing the petitioners submits that the evidence adduced by the complainant does not even prima facie bring out any offence against the petitioners. For the purpose of framing charge evidence let in by the complainant must be of such a nature that if it remains unrebutted it must warrant conviction of the accused. Such evidence, it is argued, has not been let in by the complainant. On the basis of the evidence now before court, no judicial mind can come to the conclusion that the petitioners are guilty of any offence. In such a situation if the trial is allowed to proceed with, it is contended that it will result in abuse of process of court. The petitioners’ argument is that the court below acted without jurisdiction, illegally and improperly in framing the charges.
3. Sri. K. Jagadish Chandran Nair, learned counsel representing the respondent, complainant before the court below, raised a preliminary objection regarding the maintainability of this revision petition. According to learned counsel, this court in Sarojini Amma v. Sarojini, (1987) 2 Ker LT 520 : (1988 Cri LJ 1362) took the view that an order framing charge is an interlocutory proceeding and as such no revision will lie in view of Section 397(2) of the Code of Criminal Procedure (for short ‘the Code’). In case a different view is to be taken on the issue, it is submitted this case must be referred to a Division Bench and is not to be dealt with by me sitting single. I would have accepted this submission of counsel had not the Supreme Court spoken on the subject. The law declared by their Lordships of the Supreme Court is binding on all courts in India. If the decision of this court in Sarojini Amma’s case is in conflict with the law laid down by the Supreme Court, this case need not go before a Bench. It has to be decided in accordance with the law declared by the Supreme Court. So I shall proceed to deal with the law declared by the Supreme Court.
4. The first case to be referred to is Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1978 Cri LJ 165). In this case the Sessions Court framed charge against the appellant Under Section 500 of the Penal Code. Appellant challenged the order framing charge in revision before the High Court. Preliminary objection was raised as to the maintainability of the revision petition. High Court upheld the objection and dismissed the petition. On appeal to the Supreme Court, a Bench of three Judges set aside the order of the High Court and directed that court to dispose of the revision petition on merits. According to their Lordships the words “interlocutory order” in Section 397(2) of the Code is not to be given a restricted meaning. An interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it is so interpreted it will render nugatory the revisional power Under Section 397(1) of the Code. According to the Supreme Court the real intention of the legislature was not to equate the expression “interlocutory order” as invariably being converse to the words “final order”. There is another type of orders falling in the middle course, they being not final in one sense and at the same time surely not interlocutory as that word would mean in common parlance. An order rejecting the plea of an accused on a point which when accepted will conclude the particular proceedings will surely be not an interlocutory order within the meaning of Section 397(2) of the Code. Their Lordships concluded by saying “In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of Sub-section (2) of Section 397 of the 1973 Code.”
5. In a warrant case instituted otherwise than on a police report the Magistrate shall proceed to hear the complainant and take all evidence that may be produced in support of the complaint. On taking all such evidence if the Magistrate considers that no case against the accused has been made out which, if unrebutted, would warrant conviction, the accused should be discharged. On the other hand if there is ground for presuming that the accused has committed an offence, charge should be framed against the accused if the Magistrate is competent to try the offence and can award adequate punishment. Thus it is evident that the court at the stage of framing the charge has to apply its judicial mind for considering whether or not there is ground to proceed against the accused. Order framing charge substantially affects the accused’s liberty Responsibility of framing the charge is that of the court and it has to judicially consider the materials before it in so doing. Without fully adverting all the materials on record the court is not to frame change blindly or in a mechanical way. The order so passed can by no stretch of imagination be termed as purely interlocutory.
6. In V.C. Shukla v. State, AIR 1980 SC 962 : (1980 Cri LJ 690) the Supreme Court again considered the meaning of “interlocutory order”. The court was considering the import of these words in Section 11(1) of the Special Courts Act 1979. That provision is in the following terms :–
“Appeal. 11(1) Notwithstanding anything in the Code an appeal shall lie as of right from any judgment, sentence or order, not being interloctory order, of a special court to the Supreme Court both on facts and on law.”
The Special Judge appointed under the Special Courts Act, 1979 directed a charge to be framed against the appellant. That order was challenged before the Supreme Court. Preliminary objection was raised regarding the maintainability of the appeal. Appellant contended that expressions used and meaning of the words employed in the Special Courts Act must have the same meaning and significance as used in the various provisions of the Code. In other words the contention was that the phraseology “interlocutory order” in Section 11 of the Special Courts Act must be given the same meaning and import as given to it in Section 397(2) of the Code. In support of this contention reliance was placed on the decision in Madhu Limaye’s case (1978 Cri LJ 165) where three Judges held that an order framing a charge was not an interlocutory order and therefore a revision against such an order was competent. Dealing with this the Court observed (at p. 969, para 6 of AIR) :–
“The ratio decidendi in the aforesaid case was, in our opinion absolutely correct and we are entirely in agreement with the learned judges constituting the Bench that the order of the Sessions Judge framing charges, in the circumstances of the case, was not merely an interlocutory order but partook of the nature of a final order or at any rate, an intermediate order so as to be taken out of the bar contained in Section 397(2) of the Code.”
7. Thus it is well settled that it would not be proper to treat the order framing charges as an interlocutory order pure and simple. The term “interlocutory order” used in the Code was given a very liberal construction in favour of the accused in order to ensure Complete fairness to the trial. The revisional power of the High Court or of the Sessions Court can be attracted if the order is not purely interlocutory but intermediate or quasi final. This meaning was not extended to the provision in the Special Courts Act taking note of the purpose behind that legislation. The Court after stating (at p. 971, para 8 of AIR 1980 SC):–
“We may, however, point out that we are in complete agreement with the principle, involved in the cases discussed above, that an order framing charges against an accused undoubtedly decides an important aspect of the trial and it is the duty of the court to apply its judicial mind to the materials and come to a clear conclusion that a prima facie case has been made out on the basis of which it would be justified in framing charges.”
Posed the question —
“Whether or not the term interlocutory order used in Section 11(1) of the Act should be given the same meaning as this very term appearing in Section 397(2) of the Code.”
After noting that Section 11 of the Special Courts Act excludes the Code the court observed (at p. 976, para 18 of AIR 1980 SC) :–
“It must be presumed that whenever a special judge passes any interlocutory order or an intermediate order like framing of charges, he would do so only with full and complete application of his mind and considering the various principles and guidelines indicated by this court in several decisions, some of which have been discussed above and therefore, it would not be in keeping with the dignity, decorum and status of the special judge to provide for an appeal even against such an order which he is supposed to pass with full application of mind and due deliberation.”
Fazal Ali, J. concluded the judgment stating : (at p. 988, para 46 of AIR 1980 SC) :
“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 Kuppuswamy’s case (AIR 1949 FC 1 : 49 Cri LJ 625) (supra) 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). The view taken by us appears to be in complete consonance with the avowed object of the Act to provide for a most expeditious trial and quick dispatch of the case tried by the Special Court, which appears to be the paramount intention in passing the Act.” (Emphasis added)
8. From the above decisions of the Supreme Court it is crystal clear that the term “interlocutory order” in Section 397(2) is to be given a very liberal construction favourable to the accused. The bar under that provision should apply only to orders which are purely interlocutory. It should not apply to intermediate or quasi final orders. Framing of charges is a very important matter substantially affecting the liberty of the accused. Such an order is not to be treated as a purely interlocutory one. It is revisable by exercise of the powers Under Section 397(1) of the Code. In view of this clear declaration of law by the Supreme Court, I do not consider it necessary to refer the case to a Bench for decision. I overrule the objection regarding the maintainability of this revision petition.
9. The S.N.D.P. union, of which the petitioners were the office bearers, entered into an agreement with the Luther Mission for the purchase of property having an extent of 3.04 acres. Agreement was executed on 12-5-1986. It provided for the execution of the sale deed within 6 months. An advance of rupees one lakh was paid. As per the agreement if the sale deed was not executed within the period fixed, for a consideration of rupees six lakhs the union should forfeit the advance paid. All witnesses stated before court that before the expiry of the period fixed in the agreement, the union could collect only rupees one lakh and eighty five thousand. Evidence adduced by complainant shows that the petitioners did not utilise that amount for the purchase of the land. They raised funds by themselves and took sale deed in the name of “Sahodaran Smaraka Trust”. Witnesses stated before court that petitioners repaid the advance of rupees one lakh to the Union. By the timely action of the petitioners Union could save (rupees one lakh from being forfeited to the Luther Mission. Amount collected under the ten lakh fund was never dealt with by the petitioners. In this state of affairs it can never tee taken that petitioners are liable for any offence under the Penal Code. Their actions were aimed to save the Union from loss and the union was in fact benefited by it. Petitioners did not misappropriate any amount. Nor did they utilise any fund for their personal benefit. Learned Magistrate did not consider any of the relevant material before framing charges. If proceedings are allowed to be continued in pursuance to the charges framed by court, it will result in abuse of process of law. When this court comes to the conclusion that the prosecution is false, frivolous and vexatious, this court should quash the proceedings.
In view of what has been stated above, I allow this revision petition and quash the entire proceedings pending before the trial court.