(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. The learned Single Judge of this Court (Her Ladyship Ms. Justice Harsha N. Devani) while hearing Special Criminal Application No.1590 of 2009, directed against the order dated 01.08.2009 passed by the Additional Sessions Judge and 2nd Fast Track Court, Rajkot, below Applications Exhs:12, 14, 15, 18 and 22, preferred by the accused in Criminal Revision Application No.100 of 2009, framed the following questions for consideration and opinion of a Division Bench-Larger Bench:-
"(i) Whether an order refusing to grant remand has any bearing on the proceedings of the trial itself ? Whether an order refusing to grant remand has any effect on the ultimate decision of the case ?
(ii) Whether an order refusing to grant remand can affect the progress of the trial or its decision in any manner ?
(iii) Whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order ?
(iv) Consequently, whether a revision against an order refusing to grant police remand is maintainable under section 397 CrPC ?"
2. The learned Single Judge directed the Registry to place Special Criminal Application No.1590 of 2009 before the Hon'ble Chief Justice for appropriate orders. The Hon'ble Chief Justice has referred the matter to us and accordingly, this reference has been placed before us for our consideration.
3. Having regard to the nature of the issues involved, we deem fit and proper to first take up Question No.3 and answer accordingly, as the answer to this Question No.3 will have a direct bearing on the other questions.
4. We proceed to answer the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order.
(I) Contention of petitioner:
With regard to the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order, learned Senior Counsel Mr.N.D. Nanavati, appearing with learned advocate Mr.N.D. Buch submitted that in view of the decision of the Supreme Court in State Vs. N.M.T. Joy Immaculate reported in (2004) 5 SCC 729 reported in (2004) 5 SCC 729, a remand order cannot affect the progress of the trial or its decision in any manner and that it is a pure and simple interlocutory order. According to Mr.Nanavati, though the Supreme Court was dealing with the question as to whether an order granting remand is an interlocutory order, or not, in view of the observations of the Supreme Court to the effect that "a remand order cannot affect the progress of the trial or its decision in any manner and that it is a pure and simple interlocutory order" even an order, whereby remand has been refused, would fall within the category of a pure and simple interlocutory order and consequently, a revision against such an order would not be maintainable.
Mr.Nanavati, learned Senior Advocate, further contended that an order of remand is made in exercise of powers under Section 167 of the Code, hence, both, an order granting remand or refusing remand have to be treated alike. The main plank of the contention is that source of power is the same and if it is exercised by the Competent Court in the context of Section 167 of the Code, then it is exercised in that jurisdiction and not the outcome of such proceedings. According to Mr.Nanavati, learned Senior Advocate, adjudication process is the same. Learned Senior Advocate Mr.Nanavati, submitted that if an order of grant of remand is to be termed and treated as an interlocutory order then necessarily order refusing remand should also be termed and treated as an interlocutory order. Learned Senior Advocate Mr.Nanavati, submitted that an order deciding rights either way would be an interlocutory or a final order as the case may be. Either it is interlocutory for all purposes or final for all purposes. Counsel submitted that it would be hazardous to say that if the decision is in favour of the accused, it is a final order and if it is against the accused it is an interlocutory order.
(II) Contentions of the State.
The learned APP appearing for the State contended that an order refusing remand cannot be termed as an interlocutory order and the same would be a final order so as to make the revision application maintainable for the simple reason that an order which brings the entire proceedings to an end cannot be considered to be an interlocutory order. Learned APP tried to fortify his contention by submitting that remand is a step in aid of investigation. The Investigating Agency has a legal duty to investigate an offence thoroughly so that all material can be collected and placed in the form of chargesheet to prove the case against the accused. If such a right is curtailed at the stage of investigation, as a result of which the Investigating Agency is not able to collect the necessary material and information then the same would have a direct bearing on the trial of the accused and closure of such a right would definitely amount to a final order as the investigation comes to an end and a inquiry commences as per the provisions of the Criminal Procedure Code.
5. To answer this question, it is important and necessary to understand as to what is an "interlocutory order". Under sub-section (2) of Section 397 the powers of revision conferred under sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. The expression interlocutory order is not defined in the Code of Criminal Procedure, hereinafter referred to as "the Code". Ordinarily and generally, the expression "interlocutory order" has been understood as converse of the term final order. In general a judgment or order which determines the principal matter in question is termed "final".
An order which does not deal with the final rights of the parties, but either is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter or procedure or is made after judgment, and merely directs how the declarations or right already given in the final judgment are to be worked out, is termed "interlocutory".
But an interlocutory order even though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals. The following principle laid down in Salaman v. Warner, (1891) 1QB 734 was quoted with approval in Kuppuswami Rao v. The King, AIR 1949 FC 1 : (1948 (49) Cri LJ 625).
"If their decisions, whichever way it is given, will if it stands, finally dispose the matter in dispute, I think that for the purpose of the rules it is final. On the other hand, if their decision if given in one way, will finally dispose of the matter in dispute, but, if given in the other way, will allow the action to go on, then I think it is not final, but interlocutory."
But the test laid down to decide whether an order is an interlocutory order, or not i.e. "If that objection of the accused succeeded the proceeding could have been ended but not vice versa and the order can be said to be final order only if, in either event, the action will be determined" is held to be not the correct law by the Apex Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1978 Cri LJ 165).
Holding that such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order cannot be accepted as this will render the revisional power conferred by sub-section (1) of Section 397 nugatory, the Apex Court held (Para
13) :-
"In such a situation it appears to us that 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 case (1948 (49) Cri LJ 625) (PC) but, yet it may not be an interlocutory order - pure or simple. Some 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."
6. The Apex Court also laid down that even though an order may not be final in one sense, but is surely final on other aspect and such an order is not interlocutory so as to attract the bar under sub-section (2). It was held that it must be taken to be an order falling in the middle course which is interpreted as not a final order or interlocutory order but an intermediate order. The same question was considered by the Apex Court in K.
K. Patel Vs. State of Gujarat reported in (2000) 6 SCC 195. In K. K. Patel (supra), a revision was filed challenging the dismissal of a petition for discharge on the ground that no sanction, as contemplated by Section 197 of the Code, has been obtained. The Sessions Judge allowed the objection raised by the accused based on Section 197 and allowed the revision which was challenged before the High Court on the ground that the order passed by the Metropolitan Magistrate was an interlocutory order, and therefore, no revision would lie. The Apex Court held that in deciding whether an order challenged is an interlocutory or not, the sole test is not whether such an order was passed during the interim stage instead the test is whether by upholding the objections raised by a party, it would result in culminating the proceedings. If so, the order passed on such objections would not be merely interlocutory as envisaged in Section 397(2). Analysing the objection raised by the accused in that case, it was held that if the objections were upheld the entire prosecution proceedings would have been terminated, and therefore, the order was not an interlocutory order and consequently, it is revisable.
7. It would be profitable to quote an important judgment of the Supreme Court which has a direct bearing on the question, in the case of State Vs. N.M.T. Joy Immaculate reported in (2004) 5 SCC 729.
In N.M.T. Joy Immaculate (supra), the order of the Magistrate granting custody of the accused to the police was challenged in revision before the Apex Court, wherein their Lordships held in Paragraph-13 as under:
"13.
Section 167, Code of Criminal Procedure empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209, Cr, P. C. confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Sessions and also until the conclusion of the trial. Section 309, Code of Criminal Procedure confers power upon a Court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye's case (supra), it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-sec. (2) of Section 397 Cr. P. C. a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 6-11-2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day."
8. Thus, what can be culled out from the judgment of the Supreme Court in N. M. T. Joy Immaculate (supra) is that an order granting remand is a pure and simple interlocutory order as it will not terminate the proceedings. In other words, if the objection of the accused of grant of remand is upheld the proceedings so far as remand is concerned would come to an end but not vice versa. We have noticed that the issue before the Supreme Court in N. M. T. Joy Immaculate (supra) was very limited as to whether a revision application at the instance of an accused is maintainable against an order granting police remand. The Apex Court after considering the land mark decision in the case of Madhu Limaye Vs. State of Maharashtra reported in AIR 1978 SC 47 and Amar Nath Vs. State of Haryana reported in 1977 (4) SCC 137, held that an order granting police remand is a purely interlocutory order and revision against it is not maintainable. We are considering exactly the converse situation. What will be the effect if the plea for remand made by police is rejected, thereby, the Court refuses to subject the accused to police custody for the purpose of interrogation. Though this issue was not under consideration, but while answering the issue as to whether granting police remand is an interlocutory order or not, the Supreme Court in Paragraph-10.1 has indirectly answered the question with which we are concerned that if the objection of the accused succeeds then the proceedings could have ended and therefore, such an order can be termed as a final order against which revision would be maintainable. We shall quote Paragraphs-9, 9.1, 9.2, 10 and 10.1 which read as under:
"9.
Ordinarily and generally, the expression interlocutory order has been understood and taken to mean as a converse of the term 'final order'. In volume 26 of Halsbury's Laws of England (Fourth Edition) it has been stated as under in para 504:
"[A] judgement or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory. It is better to look at the nature of the application and not at the nature of the order eventually made. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory."
9.1 In para 505 it is said that in general a Judgement or order which determines the principal matter in question is termed "final".
9.2 In para 506 it is stated as under:
"An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final Judgement are to be worked out, is termed "interlocutory".
An interlocutory order, even though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals."
10. In S. Kuppuswami Rao V/s.
King, AIR 1949 FC 1, the following principle laid down in Salaman V/s. Warner, (1891) 1 QB 734, was quoted with approval:
"If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute. I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, bat, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory."
10.1 The test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined."
9. Thus, the principle laid down is that an order which is intended as a step in aid for bringing the prosecution to its ultimate end is an interlocutory order. An order which itself brings the entire proceedings to an end, cannot be considered to be an interlocutory order. As a matter of fact even in Amar Nath's case AIR 1977 SC 2185 : (1977 Cri LJ 1891), at the fag-end of Para-6 itself, after referring to an order for bail as interlocutory proceeding, the Supreme Court observed as follows (at p.1895 of Cri LJ) :-
"But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court."
Now, in the instant proceeding, once the application for remand is rejected and once the bail is granted by the learned Magistrate, no proceeding remains pending before him at all. The right of the Department to have the particular facility for further investigation is finally negatived. The proceeding by itself comes to an end. It is difficult to see how the proceeding could be considered to be interlocutory proceeding.
The reason why the Supreme Court referred in the said Amar Nath's case AIR 1977 SC 2185 : (1977 Cri LJ 1891) to order for bail as being interlocutory order, was that orders for bail are interlocutory in a large variety of cases. When a complaint is filed against the accused and the prosecution wants the process to issue, the Court can order the accused to be taken in custody and to be released on bail. Such an order is patently an interlocutory order. In an appeal against conviction, the Court can pass an order granting bail to the accused, who is already convicted by the trial Court. Such an order is nothing but an interlocutory order. In an appeal from acquittal the Court is empowered under S.390 of the Code to direct the accused to be taken in custody and to be released on bail. This order cannot be anything but an interlocutory order. It was this category of bail that was being contemplated by the Supreme Court; not every kind of bail order.
But apart from the above mentioned expression used by the Supreme Court in Amar Nath's case AIR 1977 SC 2185 : (1977 Cri LJ 1891), as we see it, the question, to our mind, can be examined also in the light of the subsequent judgment of the Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 : (1978 Cri LJ 165). In that case, an order rejecting the application challenging the jurisdiction of the Court to proceed with the trial was held not to be an interlocutory order and the revisional application filed against the said order was held by the Supreme Court to be maintainable, disagreeing with the view of Bombay High Court. While taking that view, the Supreme Court went a step further and held as follows (at p.169 of Cri LJ) :-
"Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In vol.22 of the third Ed. of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:-
'a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.' In para 1607 it is said :
'In general a judgment or order which determines the principal matter in question is termed 'final'.' In para 1608 at pages 744 and 745 we find the words :
'An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.' In para 15 of the said judgment, the Supreme Court has indicated that even certain orders, which would be normally stamped as interlocutory orders, took in their embrace a final adjudication so far as certain important rights of the parties were concerned and that if that was so, the order in question should not be considered as interlocutory order. In this connection the Supreme Court had occasion to deal with Amar Nath's case AIR 1977 SC 2185 : (1977 Cri LJ 1891). The Supreme Court observed in that connection as follows :
-
"It is neither advisable, nor possible to make a catalogue of orders to determine which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two."
It will be seen that having regard to this view taken by the Supreme Court, in fact in Madhu Limaye's case AIR 1978 SC 47 : (1978 Cri LJ
165), the larger Bench of the Supreme Court has expressed an opinion that the broad statement of law contained in Amar Nath's case needed certain modification. However, the Supreme Court reaffirmed the decision in Amar Nath's case and held that the order releasing some of the accused on perusal of the police report and subsequently summoning them was not an interlocutory order but was a final order. To our mind, reading the two cases together Amar Nath's case and Madhu Limaye's case, no doubt is left about the legal position, namely, that an order rejecting the Department's application for remand of the accused to judicial custody is a final order and not an interlocutory order."
10. We are, therefore, of the opinion that an order refusing to grant police remand is a final order against which Revision Application under Section 397 read with Section 401 of the Criminal Procedure Code would be maintainable.
11. We shall now proceed to answer the question as to whether an order refusing to grant remand has a bearing on the proceedings of the trial itself and also as to whether an order refusing to grant remand has any effect on the ultimate decision of the question ?
12. Contentions of the petitioner:-
The learned Senior Counsel Mr.N.D. Nanavati, appearing for the petitioner submitted that the Supreme Court in the case of N.M.T. Joy Immaculate (supra) in no uncertain terms has observed that an order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case.
Mr.Nanavati, learned Senior Advocate, also invited our attention to the observation of the Supreme Court made in Paragraph-13 of the judgment that the remand order cannot affect the progress of the trial or its decision in any manner. Relying on this observation made by the Supreme Court in N.M.T. Joy Immaculate (supra), learned counsel submitted that an order refusing to grant remand would also have no bearing on the proceedings of the trial itself and would not have any effect on the ultimate decision of the case.
According to Mr.Nanavati, learned Senior Advocate, this question which has been framed by the learned Single Judge has a direct bearing on the question as to whether an order refusing to grant police remand is an interlocutory order or an intermediate or a final order.
According to Mr.Nanavati, learned Senior Advocate, if an order refusing to grant remand has no bearing on the proceedings of the trial itself and would not have any effect on the ultimate decision of the case, then in that case, the order has to be termed as an interlocutory order and not as an intermediate or a final order so as to make the revision application maintainable.
13. Contentions of the State:
On the other hand, learned APP appearing for the State contended that the observations of the Supreme Court in N.M.T. Joy Immaculate (supra) were altogether in a different context. Learned APP submitted that the issue before the Supreme Court was as to whether order granting remand is an interlocutory order or a final order and in that context, the Supreme Court observed that an order granting remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case.
However, according to the learned APP, Supreme Court has not observed anything as to what would be the position if the remand has been refused. The Supreme Court is silent on the question as to whether an order refusing remand would have any bearing on the proceedings of the trial itself or would affect the ultimate decision of the case. He, therefore, submitted that the Investigating Agency is duty bound to investigate into allegation of commission of crime or offence by the accused and such duty of investigation can be discharged by the Investigating Agency either by interrogating the accused in judicial custody or by interrogating him in police custody and if such a right is curtailed by refusing remand then in that event, it will have a direct bearing on the proceedings of the trial itself and will also have an effect on the ultimate decision of the case, as the Investigating Agency would be deprived of collecting appropriate material and evidence to prove the case against the accused beyond reasonable doubt.
In support of his contention, learned APP has relied upon a judgment delivered by the learned Single Judge of this Court (Coram: Hon'ble Mr. Justice D.C.
Srivastava) in Criminal Revision Application No.429 of 2000 dated 17.10.2000 and a judgment in the case of Gopalbhai Chaturbhai Amin Vs. State Of Gujarat reported in (2005) 4 GLR 3103.
14. We have given our anxious consideration to the contention of the learned advocate appearing for both the parties. We are of the view that the observation made by the Supreme Court in the case of N.M.T. Joy Immaculate (supra) to the effect that the order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case was in the context of the main issue before the Supreme Court. The main issue before the Supreme Court was as to whether an order of grant of remand is an interlocutory order or a final order so as to make the Revision Application under Section 397 read with Section 401 of the Code maintainable. On plain reading of the judgment of the Supreme Court in N.M.T. Joy Immaculate (supra), we find that the only issue before the Supreme Court was as to whether an order of remand passed against the accused can be termed as an interlocutory order or a final order. The Supreme Court after considering the true meaning of the term "interlocutory order" and after considering the judgment of the Supreme Court in Madhu Limaye (supra) and Amar Nath (supra) held that if the remand is granted then in that case, the proceedings are not finally culminated, and what the Supreme Court has tried to convey is that the remand is a step in aid of effective and proper investigation. If an accused is subjected to remand all that happens is that he will remain in custody of the police for more than 24 hours, during which the accused is subjected to interrogation so that the Investigating Agency can investigate the offence properly and collect cogent material to put the accused to trial by filing the chargesheet. In this context, the Supreme Court held and observed that if the order of remand is passed, it will have no bearing on the proceedings of the trial itself or will have any effect on the ultimate result of the case. However, in the present case, we are looking into the question as to what will be the effect if remand is refused and thereby, taking away right of the Investigating Agency to have an accused in police custody for more than 24 hours for the purpose of proper investigation. As we have observed earlier, the Supreme Court has very much answered this issue in Paragraph-10.1 by observing "If objection of the accused succeeded, the proceedings could have been ended but not vice versa and the order can be said to be a final order only if, in either event, the action will be determined".
15. We have to our advantage two judgments of this very High Court on the issue which we would like to refer and rely upon. In A. Majmudar (supra), the question for consideration before the learned Single Judge was whether an order of granting remand is a final order against which revision lies under Section 397 of the Code or is an interlocutory order against which revision is barred under Section 397(2) of the Code. While answering this question, the learned Single Judge has touched this issue as regards bearing on the proceedings of the trial or any effect on the ultimate decision of the case.
We are in complete agreement with the reasonings assigned by the learned Single Judge in this regard and we approve the same. The learned Single Judge held as under:
"3.
xxx xxx xxx Needless to say that if a case is registered against certain accused and the said accused is arrested and produced before the Magistrate within a period of 24 hours of his arrest the Magistrate has two options. The first is to keep such accused on being produced before him in judicial custody for a period not exceeding 15 days at intervals, the second option is to place the accused in police custody on the request of the police for effectively helping further investigation in the matter. The Investigating Agency is duty bound to investigate into allegation of commission of crime or offence by the accused. Correspondingly it has duty to effectively investigate commission of offence so as to find out who is the real culprit, who has committed offence. This duty of investigation can be discharged by the Investigating Agency either by interrogating the accused in judicial custody or by interrogating him in police custody. Normally, police custody is not lightly granted, but looking to the facts and circumstances of the case and seriousness of offence and on the request of the Investigating Agency to enable it to collect material evidence upon interrogation of the accused by placing him in police custody such request can be granted. By granting such request the Magistrate does not decide rights and obligations of the parties, namely, the prosecution and the accused. The Court simply assists the investigation in carrying out investigation in impartial and effective manner. After all investigation has to be carried out once the case is registered and the police makes a request for carrying out investigation. Carrying out investigation is a step in aid of submission of charge sheet or step in aid of submission of final report as is contemplated u/s. 169 Cr.P.C. It is only when the charge-sheet is submitted that the right of the accused can be said to have been determined one way or the other by the police. Likewise if a final report u/s. 169 is submitted it can be said that the right of the prosecution to prosecute the accused has been finally decided and such order is certainly revisable. However, mere order placing the accused in police custody is not final order in the sense that it terminates the proceeding before the Court or it terminates investigation pending before the Investigating Agency. Termination of proceeding is sine qua none for determining the finality of the order against which the revision lies. If by granting police remand the investigation is not terminated one way or the other it cannot be said to be a final order against which revision lies.
4. xxx xxx xxx If an order refusing remand is passed it is certainly a final order against which revision lies and such order cannot be termed as interlocutory order. For example, if the Investigating Agency makes a request that discovery of fact on the information of the accused in police custody is to be made such request, if refused, decides the rights of the prosecution or the investigation agency not only to collect a very material evidence u/s.27 of the Evidence Act, but also affects materially the right of the prosecution to produce material evidence which may have vital bearing on the decision of the case. In such cases it can certainly be said that while refusing to grant police remand the right of the prosecution are certainly finally determined to the limited extent for which police remand is refused and in such cases such order of refusal to grant police remand is certainly a final order against which revision lies. The matter can be illustrated further that if during investigation it comes to the notice of the Investigating Agency that after commission of murder the accused has buried the dead body of the deceased at a particular place and the police wants to recover the said dead body consequent upon the information given by the accused in police custody resulting into discovery of fact such would be a case of collection of evidence u/s. 27 of the Evidence Act which may have material bearing in a murder trial to connect that the murder was committed by the accused and he knew where after commission of murder he has concealed or buried the dead body. If on these facts police remand is refused certainly the right of the prosecution is taken away and to that extent it affects the right of the prosecution partly hence it decides a case partially against the prosecution. Consequently in such a case refusal of police remand is certainly revisable. But granting police remand is not a case where the right of the prosecution or right of the accused has in any way been partly or wholly adjudicated upon. Consequently it is not a final order against which no revision lies."
16. In Gopalbhai Chaturbhai Amin (supra), the learned Single Judge observed as under:
"[IV] xxx xxx xxx From the aforesaid paragraph it is clear that there is vast difference between the grant of remand and rejection of the remand. The whole decision of the Hon'ble Supreme Court reported in 2004 (5) SCC 729, was for grant of remand, which is held as an interlocutory order and not revisable. If the remand is rejected and the remand of the accused is not given to the police, it adversely affects the right of the prosecution of carrying out investigation. Right to carry out investigation and by which method, is exclusive powers of the State. Custodial interrogation is one of the well-known methods of investigation, and, therefore, when the remand is not granted, it affects vitally and adversely the investigation but if the same is granted, then as per Para 13 of the aforesaid judgment, even if the remand is granted, illegally, it does not affect finality of the case, and therefore, grant of remand is interlocutory order, but converse is not true, and therefore, revision application preferred by the prosecution against the order passed by the Judicial Magistrate, First Class, before the Sessions Court at Ahmedabad (Rural), was tenable at law under Sec. 397 of the Code of Criminal Procedure.
[V] The present application preferred by the applicant is under Sec. 397 to be read with Sec. 401 of the Code of Criminal Procedure, is not tenable at law against the order of grant of remand of the present applicant for 2 days, as held by the Hon'ble Apex Court in State & Anr. v. N.M.T. Immaculate (supra), especially in Paragraph Nos.12 and 13 that the order of remand at the best can be labelled as an interlocutory order, and therefore, the same is not revisable."
17. In light of the aforesaid discussion, our final conclusion may be summarized thus:
(I) An order refusing to grant remand has direct bearing on the proceedings of the trial itself and in a given case will definitely have effect on the ultimate decision of the case.
(II) An order refusing to grant remand may affect the progress of the trial or its decision in any manner if Investigating Agency is deprived of having custodial interrogation of the accused so as to effectively investigate the offence and gather necessary evidence and material to put the accused to trial.
(III) An order refusing to grant police remand would be a final order and a revision under Section 397 read with Section 401 of the Code would be maintainable.
Reference is accordingly answered. Registry shall place the matter once again before the Hon'ble Chief Justice for appropriate orders so that the main matter can be placed before the appropriate Court taking up such matter.
(A.L.
Dave, J.) (J.B.
Pardiwala, J.) koshti/ Top