ORDERS FRAMING CHARGES OR REFUSING DISCHARGE NEITHER INTERLOCUTORY NOR FINAL

SANJAY KUMAR RAI V. STATE OF UTTAR PRADESH & ANR. LL

2021 SC 246

Orders Framing Charges Or Refusing Discharge Neither Interlocutory Nor Final - Not Affected By the Bar U/Sec 397 (2) CrPC: Supreme Court.

1. Hon'ble Supreme Court has given above observation in above case, while entertaining SLP against impugned order, dated 28.11.2018, passed by Allahabad High Court, whereby a criminal revision against the order dated: 13.03.2014 of Chief Judicial Magistrate, Sant Kabir Nagar, refusing to discharge the appellant in N.C.R. No.120/2012 under Sections 504 and 506 of Indian Penal Code, 1860 , has been turned down.

2. Brief facts of the case are that a complaint was lodged with the jurisdictional police by Respondent No.2 (Kuldeep Mishra), who claimed to be a newspaper correspondent working for ‘The Pioneer’. It Had Been alleged that, he had conducted a journalistic investigation for malpractices against one gas agency, namely ‘Kalpana Indane Service’. He had also applied for the certain information under the Right to Information Act 2005, so as to conduct investigation on alleged black marketing of the gas cylinders by the aforesaid agency. The appellant herein is a partner from aforesaid gas agency. As per the NCR report it's stated that the appellant, while he was responding to the calls made by Respondent No.2, started calling him names & threatened to kill Respondent No.2. It's alleged that the appellant had threatened Respondent No.2 to pump a Lot of bullets in his face so that he may not even be recognized. On 08.05.2012, the complainant filed an application, the concerned Chief Judicial magistrate under Section 155(2) Cr.P.C. for the conducting investigation. The Court accordingly directed investigation & ordered local police to submit the report.

3. During investigation, statement of the complainant was recorded by the police. on 21.07.2012 charge sheet was filed against the appellant (accused) u/s 504/506 IPC.

4. CJM took cognizance of the matter on: 08.11.2012. Before framing of charges, appellant file an application under section 239 Cr.P.C. seeking his discharge.

5. The learned CJM did not agree with the arguments of the accused/ appellant and rejected his discharge application.

6. The appellant aggrieved of above order approached High Court During Offender revision petition seeking reversal of CJM's order.

7. The High Court relying on the judgment of the Supreme Court in case Asian Resurfacing of Road agency Pvt. Ltd. V. CBI (2018) 16 SCC 299 dismissed the Criminal Revision Petition observing that interference in order framing charge or refusing to discharge is called for in rarest of rare case only to correct patent error of the Jurisdiction.

8. Dissatisfied with above order, appellant approached Supreme Court through SLP.

9. Hon'ble Supreme Court have held that while limiting the scope of a criminal revision to jurisdictional errors alone, the High Court apparently under appreciated the Judgment in Asian Resurfacing (supra). The principle laid down in the case of Madhu Limye V. State of Maharashtra (1977) 4 SCC 551 still holds the field. Order framing charge may not be held to be purely interlocutory order & can in given situation be interfered under section 397(2) or 482 of Cr.P.C. or Art. 227 of the Constitution. However, such power should be used only in exceptional cases.

10. The correct position of law as laid down in Madhu Limaye (supra), thus is that orders framing charges or refusing discharge are neither interlocutory nor final in nature & are therefore not affected by the CrPC Section 397 (2) bar.

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