Mohan Lal Magan Lal Thacker Vs. State of
Gujarat [1967] INSC 304 (15 December 1967)
15/12/1967 SHELAT, J.M.
SHELAT, J.M.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 733 1968 SCR (2) 685
CITATOR INFO :
RF 1970 SC1168 (10) R 1971 SC 100 (6) R 1971
SC2337 (6) R 1977 SC 403 (8) RF 1977 SC2185 (8) E&D 1978 SC 47 (15,16) D
1980 SC 962 (32,40,58,60,61,62,70,100,101,
ACT:
Constitution of India, Art.
134(1)(c)-Magistrate after enquiry under s. 476 Criminal Procedure Code
ordering prosecution of offender-High Court dismissing revision-High Court's
order whether 'final order'-Certificate under s. 134(1) (c) whether can be
granted.
HEADNOTE:
After an enquiry under s. 476 of the Code of
Criminal procedure the Judicial Magistrate, Baroda, ordered that the appellant
he prosecuted for offences under ss. 205, 467 and 468 read with s. 114 of the
Indian Penal Code. In Appeal the Additional Sessions Judge held that the said
complaint was justified but only in respect of the offence under s.
205 read with s. 114. The High Court
dismissed the appellant's revision petition but granted a certificate under
Art. 134(1)(c). The appellant came to this Court. On behalf of the respondent
State it was contended that the High Court's order dismissing the revision was
not a final order as it, did not determine the complaint filed by the
Magistrate nor did it decide the controversy between the parties viz., the
State of Gujarat and the appellant. whether the appellant had committed the
offence.
Held : (Per Wanchoo C. J. and Shelat and
Vaidialingam JJ.)(i) A judgment or order may be final for one purpose and
interlocutory another or final as to part and interlocutory as to part. The
meaning of the two words 'final' and 'interlocutory' his, therefore to be
considered separately in relation to the particular purpose for which it is
required However, generally speaking a judgment or order which determines the
principal matter in question is termed final. It may be final although it
directs enquiries or is made on an interlocutory application or reserves
liberty to apply. [687 H; 688 A-,B] Salaman v. Warner [1891] 1 Q.B. 734,
Standard Discount Co., v. La Grange, [1877] 3 C.P.D. 67, A. Great Eastern Rail
Co. [1879] 27 W.R,. 759, Shutrook v. Tufnell, [1882] 9 Q.B.D, 621, Bozson
v.Altrincham Urban Council, [1903] 1 K.B. 547, Abdul Rehman v. The King [1947]
Cassim & Sons v. 60 IA. 76, S.Kuppusami Rao v. King, [1497] F.C.R. 180,
Mohammad Amin Brothers Ltd. v. Dominion of India, [1949] F.C.R. 842.
Sardar Svedna Taher Saifuddin Saheb v. The
State of Bombay [1958] S.C.R. 1007, Jethainand and Sons v. The State of Uttar
Pradesh [1961] 3 S.C.R. 754, Premchand Satramadas v. State of Bihar [1950]
S.C.R. 799, State of Uttar Pradesh v. Sujan Singh, [1964] 7 S.C.R. and State of
Orissa v. Madan Gopal [1952] S.C.R. 28, referred to.
(ii) The order of the High Court in the
present case disposed of the controversy whether the filing of the complaint
against the appellant was justified, the finality of that order was not to be
judged by co-relating that order with the controversy in the controversy viz.,
whether the appellant had committed the offence charged against him therein.
The fact 686 that that controversy remained alive was irrelevant.
Consequently the order passed by the High
Court in the revision filed by the appellant was it final order within the
meaning of Art. 134(1)(c). [693 D-H] Ramesh v. Patni, [1966] 3 S.C.R. 198,
relied on.
(iii) The High Court, before it certifies the
case in cases not covered by clauses (a) and (b) of Art. 134(1)(c), must be
satisfied that it involves some substantial question of law or principle. Only
it case involving something more than mere -appreciation of evidence is
contemplated by the Constitution for the grant of a certificate under Art.
134(1) (c) The question in the revision
petition before the High Court was whether the filing of a complaint against
the appellant was expedient in the interest of justice. This was a question of
fact and therefore the grant of certificate was not justified. [694 B-F]
Haripada Dey v. Slate of West Bengal, [1956] S.C.R. 639, and Babu State of
Uttar Pradesh, [1965] 2 S.C.R. 77 relied on.
Per Bachawat and Mitter, JJ. (dissenting)
:-Whatever test is applied in order directing the filing of a complaint and
deciding that there is a prima facie case for enquiry into an offence is not a
final order. It is merely a preliminary step in the prosecution and therefore
and, interlocutory order. As the order is not final, the High Court was not
competent to grant a certificate under Art. 134(1)(c). [695 B] S. Kuppuswamy
Rao v. The King [1947] F.C.R. 180, relied on.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.105 of 1965.
Appeal from the judgment and order dated
January 11, 1965 of the Gujarat High Court in Criminal Revision Application No.
378 of 1964.
N. N. Keswani, for the appellant.
G. L. Sanghi and S. P. Nayar, for the
respondent.
The Judgment of WANCHOO, C.J., SHELAT and
VAIDIALINGAM, JJ.
was delivered by SHELAT, J. BACHAWAT, J. on
behalf of MITTER, J. and himself delivered a separate Opinion.
Shelat, J. The appellant, a practising
advocate, was engaged by Rama Shamal and Raiji Shamal two of the accused in
Criminal Case No. 26 of 1963 in the court of the Judicial Magistrate, Baroda, in
respect of charges under ss. 302, 436, 334 read with s. 149 of the Penal Code.
On January 12, 1963, the appellant presented a bail application on behalf of
the said two accused. The Magistrate granted bail on each of the two accused
executing a personal bond of Rs.
1,500 with surety for the like amount. On
January 25, 1963, bail bonds were furnished by a person calling himself Udesing
Abhesing. The appellant identified that person as Udesing Abhesing and as
personally known to him. On the strength of his identification the Magistrate
accepted the bonds and released the two accused on bail. Thereafter, one of 687
them absented himself from the Court on three occasions and the Magistrate
issued a notice on the said surety. On March 11, 1963, the real Udesing
Abhesing appeared and denied that he had executed the said bonds or stood as
surety. The Magistrate issued an informal notice to the appellant to explain
why action should not be taken against him for identifying a person who had
falsely impersonated as Udesing Abhesing. The appellant gave his reply. The
Magistrate recorded statements of the real Udesing Abhesing and of one Chiman
Shamal. He did so to satisfy himself that there was substance in the allegation
of the said Udesing that he was not the person who had stood as surety. On July
19, 1963, the Magistrate issued a show cause notice to the appellant under s.
476, Cr. P.C. and the appellant filed his reply.
After an enquiry under s. 476, the Magistrate
ordered filing of a complaint against the appellant in respect of offences
under ss. 205, 467 and 468 read with s. 114 of the Penal Code. In an appeal
filed by the appellant, the Additional Sessions Judge, held that the said
complaint was justified but only in respect of the offence under s. 205 read with
s. 114. In a revision by the appellant a single Judge of the High Court of
Gujarat passed the following order:
"This is a matter in which this Court
should never interfere in revision. The revision application is, therefore,
dismissed".
The High Court gave certificate under Art.
134(1)(c) of the Constitution and that is how this appeal has come up before
us.
Mr. Sanghi for the respondent raised the
preliminary contention that the High Court's order dismissing the revision was
not a final order as it did not determine the complaint filed by the Magistrate
nor did it decide the controversy between the parties therein, viz., the State
of Gujarat and the appellant, whether the appellant had committed the said
offence. That controversy being still a live one, the order, according to him,
was not final, the certificate granted by the High Court was incompetent and
consequently the appeal is not maintainable.
Article 134 (1) (c) reads as follows : "An
appeal shall lie to the Supreme Court from any judgment, final order of
sentence in a criminal proceeding of a High Court .... If the High Court
certifies that the case is a fit one for appeal to the Supreme Court".
The question as to whether a judgment or an
order is final or not has been the subject matter of a number of decisions;
yet no single general test for finality has
so far been laid down. The reason probably is that a judgment or order may be
final for one 688 purpose and interlocutory for another or final as to part and
interlocutory as to part. The meaning of the two words "final" and
.'interlocutory" has, therefore, to be considered separately in relation
to the particular purpose for which it is required. However, generally
speaking. a judgment or order which determines the principal matter in question
is termed final. It may be final although it directs enquiries or is made on an
interlocutory application or reserves liberty to apply.(1) In some of the
English decisions where this question arose, one or the other of the following
four tests was applied.
1. Was the order made upon an application
such that a decision in favour of either party would determine the main dispute
?
2. Was it made upon an application upon which
the main dispute could have been decided ?
3. Does the order as made determine the
dispute ?
4. If the order in question is reversed,
would the action have to go on ? The first test was applied in Salaman v.
Warner(2) and Standard Discount Co. v. La Grange(3). But the reasoning in the
latter case was disapproved in A.G. v. Great Eastern Rail Co.(4). In Shutrook
v. Tufnell(5) the order did not decide the matter in the litigation but
referred it back to the arbitrator, though on the application on which it was
made, a final determination might have been made. The order was held to be
final. This was approved in Bozson v. Altrincham Urban Council( 6) by Lord
Halsbury who declined to follow the dictum in Salaman v. Warner(2) and Lord
Alverstone stated the test as follows :"Does the judgment or order as made
finally dispose of the rights of the parties? This test, however, does not seem
to have been applied in A. G. v. Great Eastern Urban Council(6) where an order
made on an application for summary judgment under R.S.C. Ord. 14 refusing
unconditional leave to defend was held not to be an interlocutory order for
purposes of appeal though made on an interlocutory application. An
interlocutory order, though not conclusive of the main dispute may be
conclusive as to the sub-ordinate matter with which it deals.
(1) Halsbury'S Laws of England ( 3d Etc.)
Vol. 22, 742'743.
(2) [1891] 1 Q.B. 734. (3) [1877] C.P.D. 67.
(4) [1879] 27 W. R. 759. (5) [1882] 9 Q.B.D. 621.
(6) [1903] 1 K.B. 547.
689 There are also a number of decisions on
the question of finality by the Privy Council and the Courts in India. In Abdul
Rehman v. D. K. Cassim & Sons(1) the test applied was that "the
finality must be a finality in relation to the suit. If after the order the
suit is still a live suit in.
which the rights of the parties have still to
be determined no appeal lies against it". And the fact that the impugned
order decides an important and even a vital issue is by itself not material. if
the decision on an issue puts an end to the suit, the order is undoubtedly a
final one but if the suit is still left alive and has yet to be tried in the
ordinary way, no finality could attach to the order. in this case the order was
clearly an order of remand which kept the entire case undecided. This test was
adopted in S. Kuppuswami Rao v. The King(2) where the court also held that the
words 'judgment' and 'order' have the same meaning whether the proceeding is a
civil or a criminal proceeding.
In Mohammad Amin Brothers Ltd. v. Dominion of
India(3) the Federal Court following its earlier decision adopted against the
test, viz., whether the judgment or order finally disposed of the rights of the
parties. In Sardar Syedna Taher Saifuddin Saheb.v. The State of Bombay(4), this
Court applying, the test held that the appeal before it was not maintainable as
the impugned order disposed of a preliminary issue regarding the validity of
the Bombay Prevention of Excommunication Act, 1949. but (lid not decide the
rest of the issues in the suit. In Jethanand and Sony v. The State of Uttar
Pradesh(5) the order on. which certificate under Art. 133 (1) (c) was granted
was clearly an order of' remind. Indeed, the High Court gave leave to the
parties to amend the pleadings and directed the trial court to hold a de novo
trial on the amended pleadings and the issues arising therefrom and the order
was said to be not a final order since the dispute between the parties still
remained to be tried by the trial Court.
But these were cases where the impugned
orders were passed in appeals or revisions and. since an appeal or a revision
is continuation of the original suit or proceeding the test applied was whether
the order disposed of the original suit or proceeding. 11' it did not, and the
suit or proceeding was a live one, vet to be tried. the order was held not to
be final. Different tests have been applied. however to orders made in
proceedings independent of the original or the main proceedings. Thus in
Premchand Sastramdasv. The State of Bihar(6) an order of the High Court
dismissing an application to direct the Board of Revenue to state a case to the
High Court under the Bihar Sales-tax Act, 1944, was held (1) 6, I.A. 76.
(3) [1949] F.C.R. 842.
(5) [1961] 3 S.C.R. 754.
(2) [1947] F.C.R. 180.
(4) [1958] S.C.R. 1007.
(6) [1950] S.C.R. 799.
690 not to be a final order on two grounds :
(1) that the order was made under a jurisdiction which was consultative and
standing by itself, it did not bind or affect the rights of the parties though
the ultimate order which would be passed by the Board would be based on the
opinion expressed by the High Court, -and (2) that on a construction of Art. 31
of the Letters Patent of the High Court of Patna an appeal would lie to the
Privy Council only in cases of orders passed by the High Court in its appellate
or original jurisdiction and not the advisory jurisdiction conferred by the
Act. It is clear that though the proceeding in which the High Court passed the
impugned order may be said to be an independent proceeding, one of the tests
applied was that it did not determine the rights of the parties as the
controversy as to the liability of the assessee still remained to be determined
by the Board. The decision in State of Uttar Pradesh v. Sujan Singh(1) does not
help because the proceeding in which the impugned order was passed was assumed
to be an interlocutory one arising from and during the course of the trial
itself. The question was whether the order rejecting the State's claim of
privilege from producing a certain document was a final order within the
meaning of Art. 134(1) (c). The criminal proceedings, said the Court, were the
proceedings against the respondents for an offence under s. 6(1) of the
Prevention of Corruption Act, 1947. They were still pending before the Special
Judge. In the course of those proceedings the respondents applied for the
production of the document by the Union Government and that was allowed by the
Court. The order, therefore , was an interlocutory order pending the said
proceedings. It did not purport to decide the rights of the parties i.e. the
State of Uttar Pradesh and the respondents, the accused. It only enabled the
accused to have the said document proved and exhibited in the case and
therefore was a procedural step for adducing evidence. The court also said that
assuming that the order decided some right of the Union Government, that
Government was neither a party to the criminal proceedings nor a party either
before the High Court or this Court. This decision was clearly on the footing
that the respondents' application for production of the document in which the
Union Government, not a party to the trial, claimed privilege was an
interlocutory and not an independent proceeding. The question is what would be
the position if (a) the application was an independent proceeding, and (b) if
it affected the right of the Union Government.
The decision in Ramesh v. Patni(2) would seem
to throw light on these questions. There the Claims Officer under the Madhya
Pradesh Abolition of Proprietary Rights Act, 1950 (1) [1964]7S.C.R.734.
(2) [1966] 3 S.C.R. 198.
691 held in an application by the appellants
that a debt due by them to the respondents was a secured debt though the
respondents had obtained a decree therefore. He, accordingly, called upon the
respondents to file their statement of claim as required by the Act. The respondents
filed the statement, but the officer held that it was out of time and
discharged the debt. In appeal the Commissioner held that though the Claims
Officer had jurisdiction, he could not discharge the debt as action under s.
22(1) of the, Act had not been taken. The appellants thereupon filed Art. 226
petition alleging that the Commissioner had no jurisdiction to entertain or try
the appeal. The High Court dismissed the petition summarily. The contention was
that the High Court's order was not a final order be-cause it did not decide
the controversy between the parties and did not of its own force affect the
rights of the parties or put an end to the controversy. This court observed:
(1) that the word 'proceeding' in Art. 133 was a word of a very wide import,
(2) that the contention that the order was not final because it did not
conclude the dispute between the parties would have had force if it was passed
in the exercise of the appellate or revisional jurisdiction of the High Court,
as an order of the High Court if passed in an appeal or revision would not be
final if the suit or proceeding from which there was such an appeal or revision
remained still alive after the High Court's order, (3) but a petition under
Art. 226 was a proceeding independent of the original controversy between the
parties; the question therein would be whether a proceeding before a Tribunal
or an authority or a court should be quashed on the ground of want of jurisdiction
or on other well recognised grounds and that the decision in such a petition,
whether interfering or declining to interfere, was a final decision so far as
the petition was concerned and the finality of such an order could not be
judged by co-relating it with the original controversy between the parties. The
court, however, observed that all such orders would not always be final and
that in each case it would have to be ascertained what had the High Court
decided and what was the effect of the order.
If, for instance, the jurisdiction of the
inferior tribunal was challenged and the High Court either upheld it or did
not, its order would be final.
The effect of this decision is that a writ
petition under Art. 226 is a proceeding independent of the original proceedings
between the parties; that the finality of an order passed in such an
independent proceeding is not to be judged from the fact that the original
proceedings are not disposed of by it but are still pending determination; that
the test as to whether the impugned order determines the rights of the parties
in controversy in the original proceedings instituted by one of them would not
apply to a proceeding independent of such original proceedings; and that if the
L2 Sup CI/68-14 692 order finally determines the controversy in such a
proceeding and that proceeding is disposed of, the order is final in so far as
that controversy is concerned. Even an order ex-facie interlocutory in
character has been held to be final if it finally disposed of the proceeding
though the main controversy between the parties remained undisposed of.
An illustration of such a case is to be found
in the State of Orissa v. Madan Gopal(1). The dispute there was whether the
State Government had the power to annul or cancel leases granted by the
ex-proprietor whose territory had under the agreement of merger merged in the
Union Territory and by reason of s. 4 of the Extra Provincial Jurisdiction Act,
1949 was administered by the State of Orissa. The respondents gave notice to
the State under s. 80 of the Code of Civil Procedure but apprehensive that
before the prescribed period expired, the State might annul their leases filed
a writ petition. The High Court did not decide the dispute but granted a
mandamus restraining the Government from taking action until the proposed suits
were filed. in an appeal against that order the State contended that the order
was not final as it was for an interim relief and the dispute between the
parties remained to be determined in the proposed suits. Though the order had
not determined the rights of the parties, this Court negatived the contention
and held that the order was final as 'in view of the fact that with these
orders the petitions were disposed of finally and nothing further remained to
be done in respect of the petitions".
Facts similar to the facts in the present
case were in Durga Prasad v. State of U.P.(2). A complaint was filed charging
the applicant with offences, inter alia under s. 193 of the Penal Code.
']"he applicant filed an appeal before the Sessions Judge under s. 476B of
the Code of Criminal Procedure against the order filing the complaint. The
Sessions Judge held that the order was bad as s. 476 under which the complaint
was filed stood impliedly repealed by s. 479A and set aside the order filing
the complaint. In a revision against that order, the High Court held that the
Sessions Judge was not right and setting aside his order remanded the matter to
him to decide it on merits. The High Court on an application for certificate
held that its order was not final as the real controversy between the parties
i.e. the State and the applicant, was whether the complaint was justified.
Since that question was remitted to the Sessions Judge for determination on
merits, the order was only one of remand and did not determine the aforesaid controversy.
This decision proceeds on the footing that there were two independent
controversies between the parties involved in the two proceedings. One was the
complaint which charged the applicant with the offence under s. 193 of the
Penal Code and the other was the appeal which he (1) [1952] S.C.R. 28.
(2) A.I.R. 1960 All. 728.
69 3 filed before the Sessions Judge alleging
that the complaint was not justified and that it could not be filed under s. 476
as it was impliedly repealed by s. 479A of the Code of Criminal Procedure. The
order was held, not to be final because it did not determine the latter
controversy viz., whether the complaint was justified and not on the ground
that the controversy in the complaint that the appellant had committed the offence
with which he was charged, had yet to be tried by the court. It follows that
according to the, High Court's reasoning its order would have been final, if,
instead of remanding the matter to the Sessions Judge the High Court had held
either that it was justified or not justified. This decision is in conformity
with the ratio laid down in Ramesh v. Patni(1) and State of Orissa v. Madan
Gopal(l).
The aforesaid discussion leads to the
conclusion that when the Magistrate ordered the filing of the complaint against
the appelant, the parties to that controversy were the State and the applicant
and the controversy between them was whether the appellant had committed
offence charged against him in that complaint. The appeal filed by the
appellant before the Additional Sessions Judge was against the order filing the
complaint, the controversy therein raised being whether the Magistrate was,
justified in filing it, that is to say, whether it was expedient in the
interest of justice and for the purpose of eradicating the evil of false
evidence in a judicial proceeding before the Court. The controversies in the
two proceedings were thus distinct though the parties were the same. When the
Additional Sessions Judge held that the complaint was justified in respect of the
offence under s. 205 read with s. 114 and was not justified in respect of the
other offences his judgment in the absence of a revision by the State against
it finally disposed of that part of the controversy, i.e., that the complaint
in respect of offences under ss. 467 and 468 read with s. 114 was not
justified. When the appellant filed revision in respect of the complaint for
the remaining offence under s. 205 read with s. 114 the Single Judge of the
High Court dismissed that revision. His order of dismissal disposed of that
controversy between the parties and the proceeding regarding that question as
to whether the complaint in that regard was justified or not was finally
decided. As observed in Ramesh v. Patni(1) the finality of that order was not to
be judged by corelating that order with the controversy in the complaint, viz.,
whether the appellant had committed the offence charged against him therein.
The fact that that controversy still remained alive is irrelevant. It must
consequently be held that the order passed by the High Court in the revision
filed by the appellant was a final order within the meaning of Art.
134(1) (c).
(1) [1966] 3 S.C.R. 198.
(2) [1952] S.C.R 28.
694 Even so, the next question is whether
this was a case where the High Court could have granted the certificate. In
Haripada Dey v. The State of West Bengal, (1) it was held that the High Court
had no jurisdiction to grant a certificate under Art. 1 3 4 (1 ) (c) on a mere
question of fact. In Bab v. State of Uttar Pradesh, ( 2 ) it was again observed
that the Constitution does not confer ordinary criminal jurisdiction on this
Court except in cases covered by clauses (a) and (b) of Art. 134 which provide
for appeals as of right. The High Court before it certifies the case in cases
not covered by clauses (a) and (b) of Art. 134 must be satisfied that it
involves some substantial question of law or principle. Only a case involving
something more than mere appreciation of evidence is contemplated by the
Constitution for the grant of a certificate under Art. 134(l ) (c) which alone
applies in this case. The question in the revision application before the High
Court was whether the Magistrate was right in his conclusion that offences
referred to in S. 1 95 (q) (b) or (c) of the Code of Criminal Procedure
appeared to have been committed in or in relation to a proceeding in his court
and that it was expedient in the interest of justice to file a complaint.
Obviously, this is a question of fact and
involve no substantial question of law or principle. It seems that the
certificate was issued because it appeared as if the single Judge in the
language in which he passed his order meant that the High Court as a matter of
law would never exercise its revisional jurisdiction in such cases. The order,
however, cannot mean that the High Court cannot entertain. and decide revision
applications in respect of orders passed tinder s. 476 of the Code of Criminal
Procedure. What the single Judge presumably meant was that the question being
one of fact only. the High Court would not interfere particularly where there
is a concurrent finding both of the Magistrate and the Sessions Judge in
appeal. The question being one of fact only and there being no substantial
question of law or principle, the High Court was not competent to certify the
case under Art. 134 (1) (c).
In this view it is not necessary to go into
the contentions on merits raised by the appellant's counsel. The appeal is not
maintainable and is dismissed.
Bhachawat, J. The Judicial Magistrate, First
Class, Third ,Court Baroda made an enquiry under S. 476 of the Code of Criminal
Procedure and directed the filing of a complaint' against the appellant in
respect of offences under ss. 205, 467 and 468 read with S. 114 of the Indian
Penal Code alleged -to have been committed by the appellant in relation to
proceedings in his Court. He found that there was a prima facie case for
enquiry into the (1)[1956]1 S.C. R. 639.
(2) [1965] 2 S.C.R. 771.
695 offences and it was expedient in the
interests of justice that such an enquiry should be made. In an appeal filed
after the complaint was made, the Additional Sessions Judge, while setting
aside the order in respect of the offences punishable under ss. 467 and 468
read with s. 114, confirmed the order directing the filing of a complaint with
regard to the offence punishable under s. 205 read with s. 114. A revision
application filed by the appellant was dismissed by the High Court. In view of
s. 195(1)(b) of the Code of Criminal Procedure, a prosecution for an offence
punishable under s. 205 read with S. 114 alleged to have been committed in
relation to a proceeding in any Court cannot be launched without a complaint in
writing of such Court or of a superior Court. The effect of the order of the
High Court confirming the direction for the filing of a complaint in respect of
the offence is that the -bar of s. 195 ( 1 ) (b) is removed, and the trial of
the offence can now proceed.
The appellant is still on trial. The Court
has not pronounced on his guilt or innocence, He is being tried for the offence
by a competent Court and an order of conviction or acquittal is yet to follow.
The order of the High Court involves no determination of the merits of the case
or of the guilt or innocence of the appellant. From whatever point of view the
matter is looked at, the order is interlocutory.
In a civil proceeding, an order is final if
it finally decides the rights of the parties, see Ramchand Manjilal v. Goverdhandas
Vishindas Ratanchand(l). If it does not finally decide the rights of the
parties the order is interlocutory, though it conclusively determines some
subordinate matter and disposes of the proceeding in which the subordinate
matter is in controversy. For this reason, even an order setting aside an award
is interlocutory, fee Croasdell and Cammell Laird & Co., Limited v. In
re(2). A similar test has been applied for determining whether an order ill a
criminal proceeding is final, see S. Kuppuswami Rao v. The King(:'). For the
purposes of this appeal, we do not propose to examine all the decisions cited
at the bar and to formulate a fresh test on the subject. Whatever test is
applied, an order directing the filing of a complaint and deciding that there
is a prima facie case for an enquiry into an offence is not a final order. It
is merely a preliminary step in the prosecution and therefore an interlocutory
order. As the order is not final, the High Court was not competent to give a
certificate under Art. 1 34 (1) (c) of the Constitution. The appeal is not maintainable
and is dismissed.
G.C.
(1) (1920) L.R. 47 I.A. 124.
(2) [1936] 2 K.B. 569.
(3) [1947] F.C.R. 180.
Appeal dismissed.
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