{"id":224554,"date":"1967-12-15T00:00:00","date_gmt":"1967-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohan-lal-magan-lal-thacker-vs-state-of-gujarat-on-15-december-1967"},"modified":"2019-03-30T14:28:40","modified_gmt":"2019-03-30T08:58:40","slug":"mohan-lal-magan-lal-thacker-vs-state-of-gujarat-on-15-december-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohan-lal-magan-lal-thacker-vs-state-of-gujarat-on-15-december-1967","title":{"rendered":"Mohan Lal Magan Lal Thacker vs State Of Gujarat on 15 December, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohan Lal Magan Lal Thacker vs State Of Gujarat on 15 December, 1967<\/div>\n
Equivalent citations: 1968 AIR 733, \t\t 1968 SCR (2) 685<\/div>\n
Author: Shelat<\/div>\n
Bench: Wanchoo, K.N. (Cj), Bachawat, R.S., Shelat, J.M., Mitter, G.K., Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nMOHAN LAL MAGAN LAL THACKER\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT:\n15\/12\/1967\n\nBENCH:\nSHELAT, J.M.\nBENCH:\nSHELAT, J.M.\nWANCHOO, K.N. (CJ)\nBACHAWAT, R.S.\nMITTER, G.K.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1968 AIR  733\t\t  1968 SCR  (2) 685\n CITATOR INFO :\n RF\t    1970 SC1168\t (10)\n R\t    1971 SC 100\t (6)\n R\t    1971 SC2337\t (6)\n R\t    1977 SC 403\t (8)\n RF\t    1977 SC2185\t (8)\n E&D\t    1978 SC  47\t (15,16)\n D\t    1980 SC 962\t (32,40,58,60,61,62,70,100,101,\n\n\nACT:\nConstitUtion  of  India,  Art.\t134(1)(c)-Magistrate   after\nenquiry\t under\ts.  476\t Criminal  Procedure  Code  ordering\nprosecution of offender-High Court dismissing  revision-High\nCourt's\t order\twhether 'final order'-Certificate  under  s.\n134(1) (c) whether can be granted.\n\n\n\nHEADNOTE:\nAfter  an  enquiry  under s. 476 of  the  Code\tof  Criminal\nprocedure the Judicial Magistrate, Baroda, ordered that\t the\nappellant he prosecuted for offences under ss. 205, 467\t and\n468  read with s. 114 of the Indian Penal Code.\t  In  Appeal\nthe  Additional Sessions Judge held that the said  complaint\nwas  justified but only in respect of the offence  under  s.\n205  read  with\t s.  114.   The\t High  Court  dismissed\t the\nappellant's revision pettion but granted a certificate under\nArt.  134(1)(c).   The\tappellant came to  this\t Court.\t  On\nbehalf\tof  the respondent State it was contended  that\t the\nHigh  Court's order dismissing the revision was not a  final\norder  as it, did not determine the complaint filed  by\t the\nMagistrate  nor\t did it decide the controversy\tbetween\t the\nparties viz., the State of Gujarat and the appellant.whether\nthe appellant had committed the offence.\nHeld : (Per Wanchoo C. J. and Shelat and Vaidialingam  JJ.)-\n(i)  A\tjudgment or order may be final for one\tpurpose\t and\ninterlocutory another or final as to part and  interlocutory\nas  to\tpart.The  meaning  of  the  two\t words\t'final'\t and\n'interlocutory'\t his, therefore to be considered  separately\nin  relation  to  the particular purpose  for  which  it  is\nrequired  However,  generally speaking a judgment  or  order\nwhich determines the principal matter in question is  termed\nfinal.\tIt may be final although it directs enquiries or  is\nmade on an interlocutory application or reserves liberty  to\napply. [687 H; 688 A-,B]\nSalaman v. Warner [1891] 1 Q.B. 734, Standard Discount\tCo.,\nv. La Grange, [1877] 3 C.P.D. 67, A. Great Eastern Rail\t Co.\n[1879]\t27 W.R,. 759, Shutrook v. Tufnell, [1882]  9  Q.B.D,\n621,  Bozson v.Altrincham Urban Council, [1903] 1 K.B.\t547,\nAbdul Rehman v. The King [1947] Cassim & Sons v. 60 IA.\t 76,\nS.Kuppusami  Rao v. King, [1497] F.C.R. 180,  Mohammad\tAmin\nBrothers  Ltd.\tv. Dominion  of India,\t[1949]\tF.C.R.\t842.\nSardar\tSvedna Taher Saifuddin Saheb v. The State of  Bombay<\/a>\n[1958]\tS.C.R.\t1007, Jethainand and Sons v.  The  State  of\nUttar  Pradesh<\/a> [1961] 3 S.C.R. 754, Premchand Satramadas  v.\nState of Bihar [1950] S.C.R. 799, State of Uttar Pradesh  v.\nSujan  Singh,<\/a> [1964] 7 S.C.R. and State of Orissa  v.  Madan\nGopal<\/a> [1952] S.C.R. 28, referred to.\n(ii) The  order\t of  the  High Court  in  the  present\tcase\ndisposed  of  the  controversy whether\tthe  filing  of\t the\ncomplaint against the appellant was justified, The  finality\nof that order was not to be judged by co-relating that order\nwith  the controversy in the controversy viz.,\twhether\t the\nappellant     had committed the offence charged against\t him\ntherein.  The fact\n686\nthat   that  controversy  remained  alive  was\t irrelevant.\nConsequently  the  order  passed by the High  Court  in\t the\nrevision  filed by the appellant was it final  order  within\nthe meaning of Art. 134(1)(c). [693 D-H]\nRamesh v. Patni,<\/a> [1966] 3 S.C.R. 198, relied on.\n(iii) The High Court, before it certifies the case in  cases\nnot  covered by clauses (a) and (b) of Art. 134(1)(c),\tmust\nbe  satisfied that it involves some substantial question  of\nlaw  or\t principle.  Only it case involving  something\tmore\nthan  mere -appreciation of evidence is contemplated by\t the\nConstitution  for  the\tgrant of a  certificate\t under\tArt.\n134(1) (c) The question in the revision petition before\t the\nHigh Court was whether the filing of a complaint against the\nappellant  was expedient in the interest of  justice.\tThis\nwas a question of fact and therefore the grant of certificate\nwas not justified. [694 B-F]\nHaripada Dey v. Slate of West Bengal,<\/a> [1956] S.C.R. 639, and\nBabu State of Uttar Pradesh, [1965] 2 S.C.R. 77 relied on.\nPer Bachawat and Mitter, JJ. (dissenting) :-Whatever test is\napplied,in     order directing the filing of a complaint and\ndeciding  that there is a prima facie case for enquiry\tinto\nan offence is not a final order.  It is merely a preliminary\nstep  in  the prosecution and therefore\t and,  interlocutory\norder.\t As the order is not final, the High Court  was\t not\ncompetent to grant a certificate under Art. 134(1)(c).\t[695\nB]\nS. Kuppuswamy Rao v. The King [1947] F.C.R. 180, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.105  of
\n1965.\n<\/p>\n
Appeal from the judgment and order dated January 11, 1965 of
\nthe Gujarat High Court in Criminal Revision Application\t No.
\n378 of 1964.\n<\/p>\n
N.   N. Keswani, for the appellant.\n<\/p>\n
G.   L. Sanghi and S. P. Nayar, for the respondent.
\nThe Judgment of WANCHOO, C.J., SHELAT and VAIDIALINGAM,\t JJ.
\nwas  delivered\tby  SHELAT, J. BACHAWAT,  J.  on  behalf  of
\nMITTER, J. and himself delivered a separate Opinion.
\nShelat, J. The appellant, a practising advocate, was engaged
\nby Rama Shamal and Raiji Shamal two of the accused in Crimi-
\nnal  Case  No.\t26  of 1963 in the  court  of  the  Judicial
\nMagistrate,  Baroda,  in respect of charges under  ss.\t302,
\n436, 334 read with s. 149 of the Penal Code.  On January 12,
\n1963,  the appellant presented a bail application on  behalf
\nof  the\t said two accused.  The Magistrate granted  bail  on
\neach  of  the two accused executing a personal bond  of\t Rs.
\n1,500 with surety for the like amount.\tOn January 25, 1963,
\nbail  bonds  were  furnished by\t a  person  calling  himself
\nUdesing\t Abhesing.  The appellant identified that person  as
\nUdesing\t Abhesing  and as personally known to him.   On\t the
\nstrength  of his identification the Magistrate accepted\t the
\nbonds and released the two accused on bail.  Thereafter, one
\nof
\n687<\/span>
\nthem absented himself from the Court on three occasions\t and
\nthe Magistrate issued a notice on the said surety.  On March
\n11, 1963, the real Udesing Abhesing appeared and denied that
\nhe  had\t executed the said bonds or stood  as  surety.\t The
\nMagistrate  issued  an informal notice to the  appellant  to
\nexplain\t why  action  should not be taken  against  him\t for
\nidentifying a person who had falsely impersonated as Udesing
\nAbhesing.   The\t appellant gave his reply.   The  Magistrate
\nrecorded statements of the real Udesing Abhesing and of\t one
\nChiman Shamal.\tHe did so to satisfy himself that there\t was
\nsubstance in the allegation of the said Udesing that be\t was
\nnot  the person who had stood as surety. On July  19,  1963,
\nthe  Magistrate issued a show cause notice to the  appellant
\nunder  s. 476, Cr.  P.C. and the appellant filed his  reply.
\nAfter an enquiry under s. 476, the Magistrate ordered filing
\nof a complaint against the appellant in respect of  offences
\nunder  ss.  205, 467 and 468 read with s. 114 of  the  Penal
\nCode.\tIn an appeal filed by the appellant, the  Additional
\nSessions  Judge, held that the said complaint was  justified
\nbut only in respect of the offence under s. 205 read with s.\n<\/p>\n
114.   In a revision by the appellant a single Judge of\t the
\nHigh Court of Gujarat passed the following order:\n<\/p>\n
\t      “This  is a matter in which this Court  should
\n\t      never  interfere\tin revision.   The  revision
\n\t      application is, therefore, dismissed”.\n<\/p><\/blockquote>\n
The High Court gave certificate under Art. 134(1)(c) of\t the
\nConstitution and that is how this appeal has come up  before
\nus.\n<\/p>\n
Mr. Sanghi for the respondent raised the preliminary conten-
\ntion that the High Court’s order dismissing the revision was
\nnot  a\tfinal order as it did not  determine  the  complaint
\nfiled  by the Magistrate nor did it decide  the\t controversy
\nbetween the parties therein, viz., the State of Gujarat\t and
\nthe appellant, whether the appellant had committed the\tsaid
\noffence.   That\t controversy  being still a  live  one,\t the
\norder,\taccording  to him, was not  final,  the\t certificate
\ngranted\t by the High Court was incompetent and\tconsequently
\nthe appeal is not maintainable.\n<\/p>\n
\t      Article 134 (1) (c) reads as follows : –\n<\/p>\n
\t      “An appeal shall lie to the Supreme Court from
\n\t      any  judgment,  final order of sentence  in  a
\n\t      criminal\tproceeding of a High Court  ….  If
\n\t      the  High Court certifies that the case  is  a
\n\t      fit one for appeal to the Supreme Court”.\n<\/p>\n
The  question as to whether a judgment or an order is  final
\nor not has been the subject matter of a number of decisions;
\nyet no single general test for finality has so far been laid
\ndown.\tThe reason probably is that a judgment or order\t may
\nbe final for one
\n688<\/span>
\npurpose\t and interlocutory for another or final as  to\tpart
\nand interlocutory as to part.  The meaning of the two  words
\n“final”\t  and\t.’interlocutory”  has,\ttherefore,   to\t  be
\nconsidered separately in relation to the particular  purpose
\nfor  which it is required.  However, generally\tspeaking.  a
\njudgment  or order which determines the principal matter  in
\nquestion  is  termed  final.  It may be\t final\talthough  it
\ndirects enquiries or is made on an interlocutory application
\nor reserves liberty to apply.(1) In some of the English\t de-
\ncisions\t where this question arose, one or the other of\t the
\nfollowing four tests was applied.\n<\/p>\n
\t      1.    Was\t the order made upon an\t application
\n\t      such that a decision in favour of either party
\n\t      would determine the main dispute ?\n<\/p>\n
\t      2.    Was\t it  made upon an  application\tupon
\n\t      which the main dispute could have been decided
\n\t      ?\n<\/p>\n
\t      3.    Does  the  order as made  determine\t the
\n\t      dispute ?\n<\/p>\n
\t      4.    If\tthe order in question  is  reversed,
\n\t      would the action have to go on ?\n<\/p>\n
The first test was applied in Salaman v. Warner(2) and Stan-
\ndard Discount Co. v. La Grange(3).  But the reasoning in the
\nlatter\tcase was disapproved in A.G. v. Great  Eastern\tRail
\nCo.(4).\t In Shutrook v. Tufnell(5) the order did not  decide
\nthe  matter  in the litigation but referred it back  to\t the
\narbitrator, though on the application on which it was  made,
\na  final determination might have been made.  The order\t was
\nheld to be final.  This was approved in Bozson v. Altrincham
\nUrban  Council( 6) by Lord Halsbury who declined  to  follow
\nthe  dictum  in\t Salaman v. Warner(2)  and  Lord  Alverstone
\nstated the test as follows :-\n<\/p>\n
\t      “Does  the judgment or order as  made  finally
\n\t      dispose of the rights of the parties?\n<\/p>\n
This test, however, does not seem to have been applied in A.
\nG. v. Great Eastern Urban Council(6) where an order made  on
\nan  application\t for summary judgment under R.S.C.  Ord.  14
\nrefusing unconditional leave to defend was held not to be an
\ninterlocutory order for purposes of appeal though made on an
\ninterlocutory  application.  An interlocutory order,  though
\nnot  conclusive of the main dispute may be conclusive as  to
\nthe sub-ordinate matter with which it deals.
\n(1)  Halsbury’S\t Laws of England ( 3d Etc.) Vol.  22,  742′-\n<\/p>\n
743.
\n(2)  [1891] 1 Q.B. 734. (3) [1877] C.P.D. 67. (4) [1879]  27
\nW. R. 759. (5) [1882] 9 Q.B.D. 621.\n<\/p>\n
(6)  [1903] 1 K.B. 547.\n<\/p>\n
689<\/span><\/p>\n
There  are  also a number of decisions on  the\tquestion  of
\nfinality  by the Privy Council and the Courts in India.\t  In
\nAbdul Rehman v. D. K. Cassim & Sons(1) the test applied\t was
\nthat  “the  finality must be a finality in relation  to\t the
\nsuit.  If after the order the suit is still a live suit\t in.
\nwhich the rights of the parties have still to be  determined
\nno appeal lies against it”.  And the fact that the  impugned
\norder  decides\tan important and even a vital  issue  is  by
\nitself not material. if the decision on an issue puts an end
\nto the suit, the order is undoubtedly a final one but if the
\nsuit  is  still left alive and has yet to be  tried  in\t the
\nordinary way, no finality could attach to the order. in this
\ncase the order was clearly an order of remand which kept the
\nentire\tcase  undecided.   This\t test  was  adopted  in\t  S.
\nKuppuswami Rao v. The King(2) where the court also held that
\nthe  words  ‘judgment’\tand ‘order’ have  the  same  meaning
\nwhether the proceeding is a civil or a criminal\t proceeding.
\nIn  Mohammad Amin Brothers Ltd. v. Dominion of India(3)\t the
\nFederal Court following its earlier decision adopted against
\nthe  test,  viz.,  whether the\tjudgment  or  order  finally
\ndisposed  of  the rights of the parties.  In  Sardar  Syedna
\nTaher Saifuddin Saheb.v. The State of Bombay(4), this  Court
\napplying,  the test held that the appeal before it  was\t not
\nmaintainable as the impugned order disposed of a preliminary
\nissue  regarding  the validity of the Bombay  Prevention  of
\nExcommunication\t Act, 1949. but (lid not decide the rest  of
\nthe issues in the suit.\t In Jethanand and Sony v. The  State
\nof  Uttar Pradesh<\/a>(5) the order on. which  certificate  under
\nArt.  133  (1)\t(c) was granted was  clearly  an  order\t of’
\nremind.\t Indeed, the High Court gave leave to the parties to
\namend  the pleadings and directed the trial court to hold  a
\nde  novo  trial\t on the amended\t pleadings  and\t the  issues
\narising\t therefrom and the order was said to be not a  final
\norder  since the dispute between the parties still  remained
\nto be tried by the trial Court.\n<\/p>\n
But  these were cases where the impugned orders were  passed
\nin appeals or- revisions and. since an appeal or a  revision
\nis continuation of the original suit or- proceeding the test
\napplied was whether the order disposed of the original\tsuit
\nor  proceeding. 11′ it did not, and the suit  or  proceeding
\nwas  a live one, vet to be tried. the order was held not  to
\nbe  final.   Different tests have been applied.\t however  to
\norders\tmade in proceedings independent of the\toriginal  or
\nthe  main proceedings.\tThus in Premchand Sastramdasv.\t The
\nState  of Bihar(6) an order of the High Court dismissing  an
\napplication  to direct the Board of Revenue to state a\tcase
\nto  the High Court under the Bihar Sales-tax Act, 1944,\t was
\nheld
\n(1)  6, I.A. 76.\n<\/p>\n
(3)  [1949] F.C.R. 842.\n<\/p>\n
(5)  [1961] 3 S.C.R. 754.\n<\/p>\n
(2)  [1947] F.C.R. 180.\n<\/p>\n
(4)  [1958] S.C.R. 1007.\n<\/p>\n
(6)  [1950] S.C.R. 799.\n<\/p>\n
690<\/span><\/p>\n
not to be a final order on two grounds : (1) that the  order
\nwas  made  under a jurisdiction which was  consultative\t and
\nstanding by itself, it did not bind or affect the rights  of
\nthe parties though the ultimate order which would be  passed
\nby the Board would be based on the opinion expressed by\t the
\nHigh  Court, -and (2) that on a construction of Art.  31  of
\nthe  Letters  Patent of the High Court of  Patna  an  appeal
\nwould  lie  to\tthe Privy Council only in  cases  of  orders
\npassed\tby  the\t High Court in\tits  appellate\tor  original
\njurisdiction and not the advisory jurisdiction conferred  by
\nthe  Act.  It is clear that though the proceeding  in  which
\nthe  High Court passed the impugned order may be said to  be
\nan independent proceeding, one of the tests applied was that
\nit  did\t not  determine the rights of  the  parties  as\t the
\ncontroversy  as\t to  the liability  of\tthe  assessee  still
\nremained  to  be determined by the Board.  The\tdecision  in
\nState  of  Uttar  Pradesh v. Sujan Singh<\/a>(1)  does  not\thelp
\nbecause\t the  proceeding  in which the\timpugned  order\t was
\npassed\twas assumed to be an interlocutory one arising\tfrom
\nand during the course of the trial itself.  The question was
\nwhether\t the order rejecting the State’s claim of  privilege
\nfrom  producing a certain document was a final order  within
\nthe  meaning of Art. 134(1) (c).  The criminal\tproceedings,
\nsaid the Court, were the proceedings against the respondents
\nfor an offence under s. 6(1) of the Prevention of Corruption
\nAct,  1947.   They  were still pending\tbefore\tthe  Special
\nJudge.\t In the course of those proceedings the\t respondents
\napplied\t for  the production of the document  by  the  Union
\nGovernment  and that was allowed by the Court.\t The  order,
\ntherefore  ,  was an interlocutory order  pending  the\tsaid
\nproceedings.  It did not purport to decide the rights of the
\nparties i.e. the State of Uttar Pradesh and the respondents,
\nthe  accused.  It only enabled the accused to have the\tsaid
\ndocument proved and exhibited in the case and therefore\t was
\na  procedural  step for adducing evidence.  The\t court\talso
\nsaid that assuming that the order decided some right of\t the
\nUnion Government, that Government was neither a party to the
\ncriminal  proceedings  nor a party either  before  the\tHigh
\nCourt  or  this\t Court.\t This decision was  clearly  on\t the
\nfooting that the respondents’ application for production  of
\nthe  document in which the Union Government, not a party  to
\nthe trial, claimed privilege was an interlocutory and not an
\nindependent  proceeding.  The question is what would be\t the
\nposition   if  (a)  the\t application  was   an\t independent
\nproceeding,  and (b) if it affected the right of  the  Union
\nGovernment.\n<\/p>\n
The decision in Ramesh v. Patni<\/a>(2) would seem to throw light
\non  these  questions.  There the Claims\t Officer  under\t the
\nMadhya Pradesh Abolition of Proprietory Rights Act, 1950
\n(1)  [1964]7S.C.R.734.\n<\/p>\n
(2) [1966] 3 S.C.R. 198.\n<\/p>\n
691<\/span><\/p>\n
held in an application by the appellants that a debt due  by
\nthem  to  the  respondents was a  secured  debt\t though\t the
\nrespondents   had   obtained  a\t  decree   therefore.\t He,
\naccordingly,  called  upon  the respondents  to\t file  their
\nstatement of claim as required by the Act.  The\t respondents
\nfiled the statement, but the officer held that it was out of
\ntime  and discharged the debt.\tIn appeal  the\tCommissioner
\nheld  that  though the Claims Officer had  jurisdiction,  he
\ncould  not  discharge the debt as action under s.  22(1)  of
\nthe, Act had not been taken.  The appellants thereupon filed
\nArt.  226  petition alleging that the  Commissioner  had  no
\njurisdiction to entertain or try the appeal.  The High Court
\ndismissed  the petition summarily.  The contention was\tthat
\nthe High Court’s order was not a final order be-cause it did
\nnot  decide the controversy between the parties and did\t not
\nof its own force affect the rights of the parties or put  an
\nend  to the controversy.  This court observed: (1) that\t the
\nword  ‘proceeding’  in Art. 133 was a word of  a  very\twide
\nimport, (2) that the contention that the order was not final
\nbecause it did not conclude the dispute between the  parties
\nwould have had force if it was passed in the exercise of the
\nappellate  or revisional jurisdiction of the High Court,  as
\nan  order  of  the  High Court if passed  in  an  appeal  or
\nrevision  would not be final if the suit or proceeding\tfrom
\nwhich  there was such an appeal or revision  remained  still
\nalive after the High Court’s order, (3) but a petition under
\nArt.  226  was\ta proceeding  independent  of  the  original
\ncontroversy between the parties; the question therein  would
\nbe whether a proceeding before a Tribunal or an authority or
\na court should be quashed on the ground of want of jurisdic-
\ntion  or  on  other well recognised  grounds  and  that\t the
\ndecision   in  such  a\tpetition,  whether  interfering\t  or
\ndeclining  to interfere, was a final decision so far as\t the
\npetition  was  concerned and the finality of such  an  order
\ncould  not  be judged by co-relating it\t with  the  original
\ncontroversy  between  the  parties.   The  court,   however,
\nobserved that all such orders would not always be final\t and
\nthat  in each case it would have to be ascertained what\t had
\nthe High Court decided and what was the effect of the order.
\nIf, for instance, the jurisdiction of the inferior  tribunal
\nwas  challenged and the High Court either upheld it  or\t did
\nnot, its order would be final.\n<\/p>\n
The  effect of this decision is that a writ  petition  under
\nArt.  226  is  a  proceeding  independent  of  the  original
\nproceedings  between  the parties; that the finality  of  an
\norder passed in such an independent proceeding is not to  be
\njudged\tfrom the fact that the original proceedings are\t not
\ndisposed of by it but are still pending determination;\tthat
\nthe  test  as to whether the impugned order  determines\t the
\nrights\tof  the\t parties  in  controversy  in  the  original
\nproceedings  instituted by one of them would not apply to  a
\nproceeding  independent\t of such original  proceedings;\t and
\nthat if the
\nL2 Sup CI\/68-14
\n692<\/span>
\norder\tfinally\t determines  the  controversy  in   such   a
\nproceeding and that proceeding is disposed of, the order  is
\nfinal  in so far as that controversy is concerned.  Even  an
\norder  ex-facie interlocutory in character has been held  to
\nbe final if it finally disposed of the proceeding though the
\nmain controversy between the parties remained undisposed of.
\nAn  illustration of such a case is to be found in the  State
\nof Orissa v. Madan Gopal<\/a>(1).  The dispute there was  whether
\nthe State Government had the power to annul or cancel leases
\ngranted\t by the ex-proprietor whose territory had under\t the
\nagreement  of  merger merged in the Union Territory  and  by
\nreason\tof  s. 4 of the Extra Provincial  Jurisdiction\tAct,
\n1949   was  administered  by  the  State  of  Orissa.\t The
\nrespondents gave notice to the State under s. 80 of the Code
\nof   Civil  Procedure  but  apprehensive  that\tbefore\t the
\nprescribed  period  expired,  the State\t might\tannul  their
\nleases filed a writ petition.  The High Court did not decide
\nthe   dispute  but  granted  a\tmandamus   restraining\t the
\nGovernment from taking action until the proposed suits\twere
\nfiled.\tin an appeal against that order the State  contended
\nthat the order was not final as it was for an interim relief
\nand  the dispute between the parties remained to  be  deter-
\nmined  in  the\tproposed suits.\t Though the  order  had\t not
\ndetermined  the rights of the parties, this Court  negatived
\nthe contention and held that the order was final as ‘in view
\nof  the\t fact  that with these\torders\tthe  petitions\twere
\ndisposed of finally and nothing further remained to be\tdone
\nin respect of the petitions”.\n<\/p>\n
Facts similar to the facts in the present case were in Durga
\nPrasad\tv. State of U.P.(2). A complaint was filed  charging
\nthe applicant with offences, inter alia under s. 193 of\t the
\nPenal  Code.   ‘]”he applicant filed an\t appeal\t before\t the
\nSessions  Judge\t under\ts.  476B of  the  Code\tof  Criminal
\nProcedure  against  the\t order filing  the  complaint.\t The
\nSessions  Judge held that the order was bad as s. 476  under
\nwhich the complaint was filed stood impliedly repealed by s.
\n479A  and  set aside the order filing the complaint.   In  a
\nrevision  against that order, the High Court held  that\t the
\nSessions  Judge\t was not right and setting aside  his  order
\nremanded the matter to him to decide it on merits.  The High
\nCourt on an application for certificate held that its  order
\nwas  not final as the real controversy between\tthe  parties
\ni.e. the State and the applicant, was whether the  complaint
\nwas  justified.\t  Since that question was  remitted  to\t the
\nSessions  Judge for determination on merits, the  order\t was
\nonly  one  of  remand and did not  determine  the  aforesaid
\ncontroversy.   This  decision proceeds on the  footing\tthat
\nthere were two independent controversies between the parties
\ninvolved  in  the two proceedings.  One\t was  the  complaint
\nwhich charged the applicant with the offence under s. 193 of
\nthe Penal Code and the other was the appeal which he
\n(1) [1952] S.C.R. 28.\n<\/p>\n
(2) A.I.R. 1960 All. 728.\n<\/p>\n
69 3
\nfiled before the Sessions Judge alleging that the  complaint
\nwas  not justified and that it could not be filed  under  s.
\n476  as it was impliedly repealed by s. 479A of the Code  of
\nCriminal  Procedure.   The order was held, not to  be  final
\nbecause\t it did not determine the latter  controversy  viz.,
\nwhether\t the complaint was justified and not on\t the  ground
\nthat the controversy in the complaint that the appellant had
\ncommitted the offence with which he was charged, had yet  to
\nbe  tried by the court.\t It follows that according  to\tthe,
\nHigh Court’s reasoning its order would have been final,\t if,
\ninstead\t of remanding the matter to the Sessions  Judge\t the
\nHigh  Court  had held either that it was  justified  or\t not
\njustified.   This decision is in conformity with  the  ratio
\nlaid down in Ramesh v. Patni<\/a>(1) and State of Orissa v. Madan
\nGopal<\/a>(l).\n<\/p>\n
The  aforesaid discussion leads to the conclusion that\twhen
\nthe  Magistrate ordered the filing of the complaint  against
\nthe appelant, the parties to that controversy were the State
\nand  the  applicant  and the controversy  between  them\t was
\nwhether the appellant had committed offence charged  against
\nhim  in that complaint.\t The appeal filed by  the  appellant
\nbefore\tthe Additional Sessions Judge was against the  order
\nfiling\tthe complaint, the controversy therein raised  being
\nwhether the Magistrate was, justified in filing it, that  is
\nto say, whether it was expedient in the interest of  justice
\nand  for  the  purpose\tof eradicating\tthe  evil  of  false
\nevidence  in  a judicial proceeding before the\tCourt.\t The
\ncontroversies  in  the two proceedings\twere  thus  distinct
\nthough\tthe  parties  were the same.   When  the  Additional
\nSessions  Judge\t held that the complaint  was  justified  in
\nrespect of the offence under s. 205 read with s. 114 and was
\nnot justified in respect of the other offences his  judgment
\nin the absence of a revision by the State against it finally
\ndisposed  of  that part of the controversy, i.e.,  that\t the
\ncomplaint in respect of offences under ss. 467 and 468\tread
\nwith s. 114 was not justified.\tWhen the appellant filed re-
\nvision in respect of the complaint for the remaining offence
\nunder  s. 205 read with s. 114 the Single Judge of the\tHigh
\nCourt  dismissed  that\trevision.  His\torder  of  dismissal
\ndisposed  of  that controversy between the parties  and\t the
\nproceeding  regarding  that  question  as  to  whether\t the
\ncomplaint  in that regard was justified or not\twas  finally
\ndecided.  As observed in Ramesh v. Patni<\/a>(1) the finality  of
\nthat  order  was not to be judged by corelating\t that  order
\nwith  the  controversy in the complaint, viz.,\twhether\t the
\nappellant  had\tcommitted the offence  charged\tagainst\t him
\ntherein.   The\tfact that that\tcontroversy  still  remained
\nalive is irrelevant.  It must consequently be held that\t the
\norder passed by the High Court in the revision filed by\t the
\nappellant  was\ta  final order within the  meaning  of\tArt.
\n134(1) (c).\n<\/p>\n
(1) [1966] 3 S.C.R. 198.\n<\/p>\n
(2) [1952] S.C.R 28.\n<\/p>\n
694<\/span><\/p>\n
Even so, the next question is whether this was a case  where
\nthe  High  Court  could have granted  the  certificate.\t  In
\nHaripada  Dey v. The State of West Bengal,<\/a> (1) it  was\theld
\nthat  the  High\t Court\thad  no\t jurisdiction  to  grant   a
\ncertificate under Art. 1 3 4 (1 ) (c) on a mere question  of
\nfact.  In Bab v. State of Uttar Pradesh, ( 2 ) it was  again
\nobserved  that\tthe Constitution does  not  confer  ordinary
\ncriminal jurisdiction on this Court except in cases  covered
\nby clauses (a) and (b) of Art. 134 which provide for appeals
\nas of right.  The High Court before it certifies the case in
\ncases not covered by clauses (a) and (b) of Art. 134 must be
\nsatisfied that it involves some substantial question of\t law
\nor  principle.\t Only a case involving something  more\tthan
\nmere  appreciation  of\tevidence  is  contemplated  by\t the
\nConstitution for the grant of a certificate under Art. 134(l
\n) (c) which alone applies in this case.\t The question in the
\nrevision  application before the High Court was whether\t the
\nMagistrate  was\t right\tin  his\t conclusion  that   offences
\nreferred  to  in  S.  1 95 (q) (b) or (c)  of  the  Code  of
\nCriminal Procedure appeared to have been committed in or  in
\nrelation  to  a\t proceeding in his court  and  that  it\t was
\nexpedient  in the interest of justice to file  a  complaint.
\nObviously,  this  is  a\t question of  fact  and\t involve  no
\nsubstantial question of law or principle.  It seems that the
\ncertificate was issued because it appeared as if the  single
\nJudge  in  the language in which he passed his\torder  meant
\nthat the High Court as a matter of law would never  exercise
\nits revisional jurisdiction in such cases.  The order,\thow-
\never, cannot mean that the High Court cannot entertain.\t and
\ndecide\trevision  applications in respect of  orders  passed
\ntinder\ts. 476 of the Code of Criminal Procedure.  What\t the
\nsingle\tJudge presumably meant was that the  question  being
\none  of\t fact  only.  the High\tCourt  would  not  interfere
\nparticularly where there is a concurrent finding both of the
\nMagistrate  and the Sessions Judge in appeal.  The  question
\nbeing  one  of\tfact only and  there  being  no\t substantial
\nquestion  of  law  or  principle, the  High  Court  was\t not
\ncompetent to certify the case under Art. 134 (1) (c).
\nIn this view it is not necessary to go into the\t contentions
\non merits raised by the appellant’s counsel.  The appeal  is
\nnot maintainable and is dismissed.\n<\/p>\n
Bhachawat,  J. The Judicial Magistrate, First  Class,  Third
\n,Court\tBaroda made an enquiry under S. 476 of the  Code  of
\nCriminal  Procedure and directed the.filing of a  complaint’
\nagainst the appellant in respect of offences under ss.\t205,
\n467  and  468  read with S. 114 of  the\t Indian\t Penal\tCode
\nalleged -to have been committed by the appellant in relation
\nto  proceedings\t in his Court.\tHe found that  there  was  a
\nprima facie case for enquiry into the
\n(1)[1956]1 S.C. R. 639.\n<\/p>\n
(2) [1965] 2 S.C.R. 771.\n<\/p>\n
695<\/span><\/p>\n
offences  and it was expedient in the interests\t of  justice
\nthat  such  an enquiry should be made.\tIn an  appeal  filed
\nafter the complaint was made, the Additional Sessions Judge,
\nwhile  setting\taside the order in respect of  the  offences
\npunishable under ss. 467 and 468 read with s. 114, confirmed
\nthe order directing the filing of a complaint with regard to
\nthe  offence  punishable under s. 205 read with s.  114.   A
\nrevision application filed by the appellant was dismissed by
\nthe  High  Court.  In view of s. 195(1)(b) of  the  Code  of
\nCriminal Procedure, a prosecution for an offence  punishable
\nunder s. 205 read with S. 114 alleged to have been committed
\nin relation to a proceeding in any Court cannot be  launched
\nwithout\t a  complaint  in  writing of such  Court  or  of  a
\nsuperior  Court.  The effect of the order of the High  Court
\nconfirming  the direction for the filing of a  complaint  in
\nrespect of the offence is that the -bar of s. 195 ( 1 )\t (b)
\nis  removed, and the trial of the offence can  now  proceed.
\nThe  appellant\tis  still  on  trial.\tThe  Court  has\t not
\npronounced on his guilt or innocence, He is being tried\t for
\nthe offence by a competent Court and an order of  conviction
\nor acquittal is yet to follow.\tThe order of the High  Court
\ninvolves  no determination of the merits of the case  or  of
\nthe  guilt  or innocence of the\t appellant.   From  whatever
\npoint  of  view\t the  matter is\t looked\t at,  the  order  is
\ninterlocutory.\n<\/p>\n
In  a  civil  proceeding, an order is final  if\t it  finally
\ndecides the rights of the parties, see Ramchand Manjilal  v.
\nGoverdhandas  Vishindas\t Ratanchand(l).\t  If  it  does\t not
\nfinally\t decide\t the  rights of the  parties  the  order  is
\ninterlocutory,\t though\t it  conclusively  determines\tsome
\nsubordinate  matter and disposes of the proceeding in  which
\nthe subordinate matter is in controversy.  For this  reason,
\neven  an order setting aside an award is interlocutory,\t fee
\nCroasdell  and Cammell Laird & Co., Limited v. In re(2).   A
\nsimilar\t test  has been applied for determining\t whether  an
\norder ill a criminal proceeding is final, see S.  Kuppuswami
\nRao v. The King(:’).  For the purposes of this appeal, we do
\nnot  propose to examine all the decisions cited at  the\t bar
\nand to formulate a fresh test on the subject.  Whatever test
\nis applied, an order directing the filing of a complaint and
\ndeciding  that\tthere is a prima facie case for\t an  enquiry
\ninto  an  offence  is not a final order.   It  is  merely  a
\npreliminary  step  in  the  prosecution\t and  therefore\t  an
\ninterlocutory  order.  As the order is not final,  the\tHigh
\nCourt  was not competent to give a certificate under Art.  1
\n34  (1)\t (c)  of  the  Constitution.   The  appeal  is\t not
\nmaintainable and is dismissed.\n<\/p>\n
G.C.\n<\/p>\n
(1)  (1920) L.R. 47 I.A. 124.\n<\/p>\n
(2)  [1936] 2 K.B. 569.\n<\/p>\n
(3)  [1947] F.C.R. 180.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
696<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohan Lal Magan Lal Thacker vs State Of Gujarat on 15 December, 1967 Equivalent citations: 1968 AIR 733, 1968 SCR (2) 685 Author: Shelat Bench: Wanchoo, K.N. (Cj), Bachawat, R.S., Shelat, J.M., Mitter, G.K., Vaidyialingam, C.A. PETITIONER: MOHAN LAL MAGAN LAL THACKER Vs. RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT: 15\/12\/1967 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-224554","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohan Lal Magan Lal Thacker vs State Of Gujarat on 15 December, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohan-lal-magan-lal-thacker-vs-state-of-gujarat-on-15-december-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohan Lal Magan Lal Thacker vs State Of Gujarat on 15 December, 1967 - 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