IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3305 of 2006()
1. STATE,REP.BY THE PUBLIC PROSECUTOR,
... Petitioner
Vs
1. THOMAS KOSHY,S/O.KOSHY VAIDHYAN,
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :20/09/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 3305 of 2006
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Dated this the 20th day of September, 2006
O R D E R
This revision petition is filed by the State, aggrieved by the
order produced as Annex. I passed by the Additional Sessions Judge
in a prosecution under Sections 452 and 307 I.P.C. The case has
already been committed for trial. The matter stands listed for trial to
23.9.2006.
2. While the learned Prosecutor in charge of the trial studied
the matter, it was revealed that the material objects have not been
sent for chemical examination. The learned Prosecutor thereupon
filed a petition before the Sessions Judge to forward the material
objects to the Chemical Examiner for examination. The learned
Sessions Judge evidently taking note of the fact that the matter is
ripe for trial, did not grant the said request. The learned Sessions
Judge observed that no application having been made before the
Committal court for forwarding the articles for chemical examination,
Crl.R.P.No. 3305 of 2006 2
the belated prayer of the Prosecutor is not justified. Accordingly the
learned Sessions Judge proceeded to pass the impugned order.
3. The learned Prosecutor submits that there was already a request
by the Investigating Officer before the committal court to send the material
objects for chemical examination. That request was omitted to be
considered and it was in these circumstances that the present application
was filed before the learned Sessions Judge.
4. The Registry has raised an objection that the revision petition is
not maintainable against the impugned order in as much as it is not a final
order. The bar under Section 397(2) Cr.P.C. would apply, it is pointed out.
5. The revision petition was numbered and the matter was heard for
admission. The impugned order is certainly not a final order. But the bar
under Section 397(2) Cr.P.C. does not apply to all orders which are not
final orders. Between the category of final orders and interlocutory orders
stricto senso there exists a class of orders which are neither final nor
interlocutory, but do belong to the class of intermediate orders. Such
intermediate orders, it is trite, are orders which contain decisions of moment
affecting the rights of the parties substantially. To such intermediate orders
Crl.R.P.No. 3305 of 2006 3
the bar under Section 397(2) cannot obviously apply. There can be no
doubt on the position of law applicable in the situation.
6. The question then is whether the impugned order can be held to
be a non-interlocutory order which does not attract the bar under Section
397(2). The learned Prosecutor was requested to explain the purpose of
such examination by the Chemical Examiner. The only submission is that
the weapon of offence has blood marks on it and that has to be confirmed
by an expert. I am not persuaded to agree that the impugned order can in
these circumstances be reckoned as one containing any decision of moment
affecting the rights of the parities substantially.
7. I concur with the objections raised by the Registry. The
impugned order being an interlocutory order is not amenable to the
revisional jurisdiction of this court. The bar under Section 397(2) Cr.P.C.
squarely applies. At this belated hour, when the case is posted for trial to
23.9.2006, I am not certainly persuaded to invoke the revisional jurisdiction
against the impugned order.
8. This revision petition is hence dismissed.
Crl.R.P.No. 3305 of 2006 4
(R. BASANT)
Judge
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