JUDGMENT
Madan Mohan Prasad, J.
1. This is an application in revision against an order passed by the Addl. Sessions Judge setting aside an order by which the Sub-divisional Judicial Magistrate had started an inquiry under Section 202 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’).
2. It appears that a complaint petition under Sections, 500, 504 and 352 of the Indian Penal Code was filed by the petitioner against opposite party Nos. 2 and 3 who were respectively, at the relevant time, the Sub-divisional Officer, Khagaria, and an Assistant Sub-Inspector of Police. It was alleged that students, including boys and girls were offering peaceful Satyagrah in the criminal courts on the 12th of April, 1974, when, on the order of opposite party No. 2, they were dragged, chased and assaulted. The sub-divisional Officer is said to have a defamatory statement against the parents of the girl Sathagrayis calling them names. Both the opposite party are said to have used defamatory statements calling names against the member of the Bar Association. There was a large gathering present at the relevant time. This resulted in a meeting of the Bar Association condemning the behaviour of these officers and the decision to file a criminal case. Hence this complaint. The complainant alleged that he and other law years had suffered a loss of respect in the eye of the people as a result of the abusive and defamatory language used by the opposite parties aforesaid and if the complainant and the public at large had not controlled their anger, there would have been a riot.
3. The complaint having been filed before the Sub-divisional Judicial Magistrate on the 17th, of April, 1974 he examined the complainant on oath and decided to hold an inquiry under Section 202 of the Code arid directed the complainant to produce his witnesses in court.
4. Being aggrieved with this order the opposite party moved the Sessions Judge under Section 397 of the Code with the result that the aforesaid order of the Magistrate was set aside. Hence this application.
5. The learned Sessions Judge held that the complaint did not disclose any offence inasmuch as the remarks made were neither defamatory nor any such overt act was alleged as would be an offence and thus no useful purpose would be served by an inquiry under Section 202 of the Code. Accordingly he set aside the order.
6. On behalf of the petitioner it has been urged that the Additional Sessions Judge has erred in passing the order aforesaid; firstly, because the order of the Sub-divisional Judicial Magistrate was an interlocutory order and no revision lay before him; secondly, no processes having been issued against the accused they had no locus standi to ask for quashing of the order; and thirdly, because the statements were definitely defamatory.
7. With regard to the first contention it appears that the point had been raised before the learned Additional Sessions Judge. He, however, held that the impugned order amounted to one of taking cognizance and thus was not an interlocutory order. Secondly, that “in pursuance of that order the petitioners are noticed and if they so desire they may make available for watching the proceeding of the enquiry against them”, and thus “they are definitely subjected to jurisdiction of the court, in a criminal proceeding in which they are directly involved”. As such the “petitioners are fully entitled to” assail the order under Section 202 of the Code, “even though they are noticed for the limited purpose of watching the enquiry”. The learned Additional Sessions Judge further said that the inquiry under Section 202 of the Code was not under any ancilliary power arising out of the provisions of Section 200 of the Code but it was under an independent self-contained statutory provision laid down in Section 202 of the Code, and in this view of the matter also the impugned order could not be termed as an interlocutory order and the revision application before him was thus maintainable.
8. The first question which arises is what is an interlocutory order. In Stroud’s Judicial Dictionary, Third Edition, page 1495, it is said ‘Interlocutory order (Section 25(8), Judicature Act, 1873 (36 & 37 Viet., c. 66) is not confined to an order made between writ and final judgment, but means an order other than final judgment;.” In Jowitt’s Dictionary of English Law (at page 995). It is said “a proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely, the judgment. Thus, interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment; of protecting or otherwise dealing with the subject-matter of the action before the rights of the parties are finally determined; or of executing the judgment when obtained. Such are applications for time to take step (e.g., to deliver a pleading), for discovery, for an interim injunction, for the appointment of a receiver, for obtaining a garnishee order, etc.”
9. In the Code there is no definition of the term given. It is, however, permissible in such circumstances upon the well accepted principles of construction of statute to refer to the meaning given to the same term in other statutes provided the latter is not repugnant in the context in which it has been used in the former statute. The term ‘interlocutory’ has been understood in a large number of cases in respect of the Code of Civil Procedure, to mean an order made during the progress of a suit upon some incidental matter arising out of the proceeding. Obviously thus, it is not an order finally determining the rights of the parties, but an order at intermediate stage of the proceeding for the purpose of advancing the proper decision of the subject matter of dispute. The decision of the Supreme Court in the case of Central Bank of India Ltd. v. Gokal Chand , would show that their Lordships termed as ‘interlocutory’ orders for summoning of witnesses, discovery, production and inspection of documents, issue of commissions for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of the documents or relevancy of a question. In this connection their Lordships observed that “all these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties”.
10. It is thus obvious that an interlocutory order is one which is not a final adjudication of the matter in dispute and relates only to incidental or ancilliary matters arising in the proceeding and do not affect any right or liability of the parties.
11. In the light of these principles, it has to be judged as to whether the order by which the Magistrate in the present case took cognisance and decided to hold an inquiry under Section 202 of the Code, is an interlocutory order. Section 200 of the Code provides for the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present, except in cases where the complaint is made by the public servant, or if the Magistrate makes over the case to another Magistrate under Section 192. It is well known that taking cognizance of an offence means the application of mind to the facts mentioned in the complaint with a view to take action thereon as provided in Chapter XV and subsequent chapters of the Code. Section 201 of the Code provides for the procedure to be adopted by a Magistrate who is not competent to take cognizance of the offence. Section 202 allows the Magistrate to postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by police officer or by such other person as he thinks fit, for the purpose of “deciding whether or not there is sufficient ground for proceeding. The proviso to the aforesaid section mentions the cases where such direction for investigation shall not be made. Sub-section (2), thereof enables a Magistrate to take evidence of witnesses on oath during the inquiry under Sub-section (1). Sub-section (3) enables a person other than a police officer investigating under Sub-section (1) to exercise all the powers of an officer incharge of a police station except the power to arrest without warrant. Section 203 then provides that if after considering the statements on oath, if any, of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case, he shall briefly record his reasons for so doing.
12. Turning to these Sections again, it is obvious that when the Magistrate acts under Section 200 he takes cognizance of the offence. It is well known that cognizance is taken of an offence and not of the offender. There may be an information relating to an offence without naming the offenders. In such cases the offender has to be found out after inquiry or investigation. The definition of the word “complaint”‘ in Section 2(d) shows that it means “any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a police report”. The question thus arises whether an order by which a Magistrate takes cognizance can be said to be an interlocutory order. What is the purpose of taking cognizance of an offence under Section 190 of the Code. After taking cognizance, the Magistrate may act under Section 192 and make over the case for inquiry or trial to any competent Magistrate subordinate to him, or proceed in oases of the complaint in accordance with the provisions of Chapters XV and XVI beginning with examination of the complainant and his witnesses and dismissing the complaint under Section 203 or issuing process to the accused under Section 204 except in cases of cognisance under Section 190(c). In this view of the matter, can the order of cognizance be termed as finally deciding the rights of the parties. The accused persons may be unknown at that stage. In can thus never be said to determine finally the rights of the accused. Does it finally decide the right of the complainant or the first informant? It does not. He takes cognizance with a view to proceed in the matter. It is thus the beginning and not the end. Can it then be anything other than an order taking a step towards a final adjudication of the matter without affecting any right or liability of the parties. In my view, therefore, an order by which a Magistrate takes cognizance of an offence cannot be anything other than an ‘interlocutory’ order.
13. In the view which I have taken I am supported by a decision of a learned Judge of the Andhra Pradesh High Court in the case of Budaraju Seshagiri Rao and Ors. v. T.V. Sarma and Anr. 1976 Criminal Law Journal 902. In that case a preliminary objection had been raised to the effect that an order by which cognizance of an offence had been taken was an interlocutory order and a revision against such an order was barred by Section 397(2) of the Code. The objection was upheld. I have not been able to lay my hands on any other decision directly on the point. There are, however, some decisions in the respect of different kinds of orders deciding whether they were interlocutory in nature. In the case of Bhupindra Kumar Bhatnagar v. State 1975 Criminal Law Journal 1185, a learned single Judge of the Delhi High Court held that an order framing a charge is an interlocutory order. An order granting or refusing bail was held to be interlocutory in the case of Dhola and Ors. v. The State 1975 Criminal Law Journal 1274. An order issuing processes under Section 204 was held by a learned single Judge of the Delhi High Court to be interlocutory in the case of Sam Lal Nagrath, Tis Hazart Delhi v. Krishan Lal Suri and Ors. 1976 Criminal Law 215. I have mentioned these decisions merely for the sake of showing that orders similar to the present one, inasmuch they were orders not finally deciding the rights of the parties, were held to be interlocutory in nature, I need not be taken to express my agreement with the decisions aforesaid for the questions raised in those cases do not arise in the instant case before me.
14. There is thus no escape from the conclusion that the impugned order in the present case in so far as it relates to taking cognizance of the offence is an interlocutory order.
15. Looking at the other part of the impugned order, namely, the order to hold an inquiry under Section 202 of the Code, it is obvious that it also must be held to be interlocutory in nature. The purpose of an inquiry or investigation under Section 202 of the Code is to enable the Magistrate to decide for himself whether there are sufficient grounds for proceeding against the accused. It is well known that when the Magistrate has some doubts left in his mind regarding the truth of the accusations and he does not want to proceed against the accused immediately, he postpones the Issue of process and inquires into the case himself or orders investigation. In other words, in such circumstances the Magistrate does not take any final decision and he wants to ascertain more facts and the truth of the facts stated in order to come to the conclusion as to whether or not there is sufficient ground for proceeding against the accused. The Magistrate thus waits until the inquiry is completed and it is only then that he decides whether to dismiss the complaint under Section 203 or issue process against the accused under Section 204 of the Code. The inquiry under Section 202 is thus a step leading to the determination of the question as to whether the complaint should be dismissed or the accused should be proceeded against. The order for holding an inquiry under, Section 202 of the Code can thus by no stretch of imagination be held to be an order affecting the rights of the parties. It must, therefore, undoubtedly be an interlocutory order.
16. Section 397(2) of the Code lays down that the power of revision conferred by Sub-section (1) thereof shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. It is well known that there was no such provision under the Code of Criminal Procedure, 1898. It is obvious that the Legislature thought it necessary to curtail the power of revision against the interlocutory orders passed in criminal cases. A similar whole-some rule was laid down in a large number of decisions in respect of civil cases and the right of revision under Section 115 of the Code of Civil Procedure, The very same rule has been considered by the Legislature proper for being engrafted in the Criminal Procedure Code. The purpose is obviously to eliminate delays in disposal of criminal proceedings, giving certain amount of finality to interlocutory orders in view of the nature thereof until the final determination of the proceeding itself and also minimising litigations. Courts have, therefore, to execute the command of the Legislature contained in the aforesaid provision of law. Courts having the right of revision ought not, therefore, to try to circumvent the aforesaid provision simply because it puts a curb on the powers of the court and may not in the first instance be looked at with favour.
17. In the instant case the learned Additional Sessions Judge has given reasons which are untenable. I wish to point out that he is in error in thinking that after an inquiry had been ordered, a notice had got to go to the accused and he had a right to be present during the inquiry and that the accused are thus subjected to the jurisdiction of the court and for that reason they have a right to agitate against the inquiry under Section 202 of the Code. I wish to point out further that the learned Additional Sessions Judge passed unjustified stricture on the learned Magistrate inasmuch as he refused to entertain the petition filed by the accused before him for staying the inquiry before examining the witnesses produced by the complainant. The aforesaid observation of the learned Sessions Judge was based on his erroneous view that the accused had a, right to ask for the stay of the inquiry.
18. In the circumstances of the present case, therefore, the order of the learned Magistrate taken as a whole was an interlocutory order and not revisable in view of the bar under Section 397(2) of the Code. On this ground alone, therefore, the order of the learned Additional Sessions Judge must be set aside, with the result that the order passed by the learned Magistrate remains a legal and valid order.
19. In view of the aforesaid decision it is unnecessary in the present case to enter into the other grounds of attack raised by counsel for the petitioner.
20. In the result, this application is allowed.