Madhu Limaye v. The State Of Maharashtra (1977) - Interlocutory, Intermediate & Final Order

KEY TAKEAWAYS

• DATE OF JUDGEMENT: 31^st October, 1977.
• JUDGES: Justice N. Untwalia
• REFERENCE:  1978 AIR 47, 1978 SCR (1) 749
• PARTIES: Madhu Limaye (Plaintiff) and The State Of Maharashtra (Respondent)

SUBJECT

In this judgment the said statements were published in various newspapers. The State Government decided to prosecute the appellant for an offence under Section 500 of the Indian Penal Code as it was of the view that the Law Minister was defamed in respect of his conduct in the discharge of his public functions. This judgement deals with the State Government decision to prosecute the appellant for an offence under Section 500 of the Indian Penal Code as it was of the apropos that the Law Minister was defamed in respect of his conduct in the discharge of his public functions. Sanction was analogously with Section 199 (4) (a) of the 1973 Indian Penal Code, which was purported to have been accorded by the State Government. Subsequently, a Public Prosecutor filed a complaint in the Court of the Sessions Judge, Greater Bombay. Apprehension of the alleged offence to have been committed by the appellant was taken up by the Court of Sessions without the case being committed to it as permissible under sub-section (2) of section 199. A proceeding was issued against the appellant on the said complaint.

AN OVERVIEW

1. The Chief Secretary to the Government of Maharashtra was examined on the 17th February, 1975, as a witness in the Sessions Court to prove the sanction order of the State Government. Shri Madhu Limaye (the appellant), filed an application to dismiss the complaint by taking into consideration that the Court had no jurisdiction to entertain the said complaint.
2. The asseverate taken on behalf of the appellant was that allegations were made against Shri Antulay (Law minister) in relation to what he had done in his personal capacity and not in his capacity of discharging his functions as a Minister.
3. The Sessions Judge had rejected all these contentions and framed a charge against the appellant under section 500 of the Penal Code. The appellant, thereupon, challenged- the order of the Sessions Judge in the revision filed by him in the High Court.

IMPORTANT PROVISIONS

Indian Penal Code

• Section 199 (4) (a) - False statement made in declaration which is by law receiva­ble as evidence.—Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence
• Section 500- Punishment for defamation.—whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
• Section 482- Punishment for using a false property mark.—Whoever uses any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

ISSUES

The following are the major issues framed by the High Court-

• The assumption that the allegations made against Shri Antulay were defamatory, they were not in respect of his conduct in the discharge of his public functions and hence the aggrieved person could file a complaint in the Court of a competent Magistrate who after taking cognizance could try the case or commit it to the Court of Session if so warranted in law. Subsequently, the Court of Session could not take cognizance without the committal of the case to it.
• The given sanction in this case was substandard in as much as it was not given by the State Government but was given by the Chief Secretary.
• The above mentioned Chief Secretary had not applied his mind to the entire conspectus of the facts and had given the sanction in a mechanical manner. The sanction was inadequate on that account as well.

ANALYSIS OF THE JUDGEMENT

1. As stated above, the Sessions Judge rejected all these contentions and framed a charge against the appellant under Section 500 of the Penal Code. The appellant (Shri Madhu Limaye), thereupon, challenged the order of the Sessions Judge in the revision filed by him in the High Court. As already mentioned, without entering into the merits of any of the contentions raised by the appellant, it upheld the preliminary objection as to the maintainability of the revision application. Hence this appeal was given.
2. Subsequently taking into account the point which falls for determination in this appeal is squarely covered by a decision of this Court, to which (Untwalia, J.) was a party in Amar Nath v. State of Haryana. But followed by careful rumination of the matter and on hearing what the learned for the parties in this appeal, they thought it would be advisable reiterate the view taken by two learned Judges of this Court in Amar Nath's case but in a somewhat modified and modulated form. As seen in Amar Nath's case, as in this, the order of the trial Court issuing process against the accused was challenged and the High Court was asked to quash the criminal proceeding either in exercise of its inherent power under Section 482 of the 1973 Code corresponding to Section 561A of the Code of Criminal Procedure, 1898 - hereinafter called the 1898 Code or the old Code, or under Section 397(1) of the new Code corresponding to Section 435 of the old Code. Two points were decided in Amar Nath's case: (a).While fully agreeing with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (b).Taking Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2).
3. Stated under Section 435 of the 1898 Code the High Court had the power to "call for and examine the record of any proceeding before any inferior Criminal Court is situated within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court", and then to pass the necessary orders in accordance with the law engrafted in any of the sections following Section 435. Apart from the revisional power, the High Court also possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial justice for the administration of which alone Courts exist. One may read the language of Section 482 (corresponding to Section 561A of the old Code) of the 1973 Code. It says: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to stage effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
4. In this case, reference has been made to the decision of this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat [(1968) 2 SCR 685: AIR 1968 SC 733: 1968 Cri LJ 876]. After conducting an enquiry under Section 476 of the 1898 Code, an order was made directing the filing of a complaint against the appellant. It was affirmed by the High Court. The matter came to this Court on grant of a certificate under Article 134(1)(c). A query stood whether the order was a "final order" within the meaning of the said constitutional provision. Shelat, J. delivering the judgment on behalf of himself and two other learned Judges, said that it was a final order. The dismissing judgment was given by Bachawat, Judge on behalf of himself and another learned Judge. A test of this is "if the order in question is reversed would the action have to go on?" Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. But applying the test of Kuppuswami's case such an order will not be a final order. But applying the fourth test noted at page 688 in Mohan Lal's case it would be a final order. The real point of differentiation, however, is to be found at page 693 in the judgment of Shelat, J. We must, however, hurry to add that the majority decision in Mohan Lal's case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. Looking from that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lal's case. Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, 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 (Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England) within the meaning of Section 397(2).

CONCLUSION

In culmination, the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order-pure or simple. Certain kinds of order may fall in between the two. By a rule of harmonious construction, we, think that the bar in sub-section (2) of section 397 is not meant to be attracted to such kinds of intermediate orders. They might not be the concluding orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterize them as merely interlocutory orders within the meaning of section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be concluding, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be destroyed out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be concluding in one sense, is surely not interlocutory so as to attract the bar of subsection (2) of section 397. To opinionate it must be taken to be an order of the type falling in the middle of both.