Safiya Malik

The High Court of Judicature at Patna, Single Bench of Justice Jitendra Kumar held that a complainant’s challenge to an order summoning accused persons amounts to an interlocutory order, and therefore a revision petition against such an order is barred under Section 438(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The Court observed that such an order does not constitute a final determination of rights for the complainant. Dismissing the revision petition, the Bench clarified that the complainant may instead invoke the Court’s inherent jurisdiction or seek inclusion of additional accused at a later stage in the proceedings under applicable procedural provisions.

The petitioner, the complainant in the underlying criminal case, filed a complaint alleging offences against multiple individuals for acts purportedly attracting several provisions of the Indian Penal Code, including Sections 119, 143, 147, 166, 167, 207, 209, 217, 218, 219, 220, 228, 120B, 323, 448, 504, and 511. Upon examination, the Judicial Magistrate took cognizance only against one accused person for offences under Sections 323 and 506/34, issuing summons accordingly. Aggrieved by the limited scope of cognizance, the complainant approached the High Court seeking revision of the order, contending that the materials on record established a prima facie case against all the accused for the broader set of alleged offences.

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The petitioner’s counsel argued that the Magistrate erred by restricting cognizance and summoning to one accused alone, thereby failing to consider the full extent of the alleged acts and applicable penal provisions. It was submitted that the evidence on record justified summoning all the named individuals and inclusion of the additional offences mentioned in the complaint.

On the other hand, the State’s counsel raised a preliminary objection to the maintainability of the revision petition. It was argued that, in law, a revision petition against such an order is not maintainable since the order taking cognizance and issuing summons is interlocutory in nature. Referring to Section 397(2) of the Code of Criminal Procedure and Section 438(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the State submitted that no revision lies against interlocutory orders, and the proper recourse for the complainant would be to invoke the Court’s inherent jurisdiction under Section 482 CrPC or Section 528 BNSS.

After considering the submissions and precedents cited, the Court concluded that the order in question was interlocutory concerning the complainant, and therefore, the revision petition was barred under Section 438(2) BNSS.

Justice Jitendra Kumar recorded that “the impugned order is a summoning order against accused person/Respondent No. 2 herein passed by learned Judicial Magistrate, after inquiry under Section 200 Cr.PC/223 B.N.S.S.” It was, therefore, undisputedly not a final order.

Addressing whether the order was interlocutory, the Court noted that the Code does not define the term. Relying on established precedents, Justice Kumar referred extensively to judgments of the Supreme Court clarifying distinctions among final, interlocutory, and intermediate orders.

Citing Amar Nath v. State of Haryana (1977) 4 SCC 137, the Court quoted: “The term ‘interlocutory order’ in Section 397(2) of the 1973 Code has been used in a restricted sense... It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties.” The Court further noted that “any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order.”

From Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551, the Court extracted: “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 within the meaning of Section 397(2).” It also cited V.C. Shukla v. State through CBI (1980 Supp SCC 92) wherein the Supreme Court held: “An interlocutory order is one which merely decides some point or matter essential to the progress of the suit... but not a final decision or judgment on the matter in issue.”

The Court reiterated from K.K. Patel v. State of Gujarat (2000) 6 SCC 195 that “the feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings; if so, any order passed on such objections would not be merely interlocutory.” Justice Kumar also referred to Girish Kumar Suneja v. CBI (2017) 14 SCC 809, observing that “there are three categories of orders that a court can pass—final, intermediate and interlocutory... an intermediate order is one which, if passed in a certain way, terminates the proceedings but if passed otherwise, allows them to continue.”

Summarising the legal position, the Court stated that “all orders other than the final orders are not interlocutory ones. Some of them are intermediate or quasi-final orders.” It further explained that an intermediate order, when reversed, terminates proceedings, while an interlocutory order does not. “It also implies that the order may be intermediate for the accused but interlocutory for the complainant/informant/State,” the judgment recorded.

Applying these principles, the Court observed that in the present case, the complainant sought addition of 22 accused persons and cognizance under multiple sections. “Even if all the pleas/objections taken by the complainant/petitioner against the impugned order are accepted and the petition is allowed by this Court, the proceedings before the court below would not get terminated or concluded,” Justice Kumar wrote. Thus, for the complainant, the impugned order was interlocutory.

The Court held: “I find that the present Criminal Revision petition filed by the complainant/petitioner is misconceived and not maintainable in view of Section 397(2) Cr.PC/438(2) B.N.S.S.” The appropriate course for the petitioner, the Court clarified, was to invoke the inherent jurisdiction of the High Court under Section 482 CrPC/Section 528 BNSS.

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“The petitioner has also remedy at later stage of the trial after recording of evidence of the prosecution.” Specifically, the Court stated that the complainant may seek “summoning of additional accused under Section 319 Cr.PC/Section 358 B.N.S.S., or addition/alteration of charge under Section 216 Cr.PC/Section 239 B.N.S.S., if so advised.”

“Accordingly, the present petition stands dismissed as not maintainable, with liberty to the petitioner to move appropriate applications at appropriate stage.”

Advocates Representing the Parties

For the Petitioner: Mr. Indradeo Prasad, Advocate
For the Respondents (State): Mr. Mithlesh Kumar Khare, Additional Public Prosecutor

Case Title: Laxmi Devi @ Suman Devi v. The State of Bihar & Ors.
Case Number: Criminal Revision No. 907 of 2024
Bench: Justice Jitendra Kumar