PETITIONER:
MOHAN LAL MAGAN LAL THACKER
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT:
15/12/1967
BENCH:
SHELAT, J.M.
BENCH:
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 pettion 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.
JUDGMENT:
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 Crimi-
nal 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 be 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 conten-
tion 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 de-
cisions 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 Stan-
dard 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 Proprietory 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 jurisdic-
tion 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 deter-
mined 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 re-
vision 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, how-
ever, 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.
696