iminal Appeal No105 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 section P Nayar for the respondent
The Judgment of WANCHOO CJ 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 sections 302 436 334 read with section 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 1500 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 section 476 Cr
PC and the appellant filed his reply
After an enquiry under section 476 the Magistrate ordered filing of a complaint against the appellant in respect of offences under sections 205 467 and 468 read with section 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 section 205 read with section 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 article 1341c 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 apply1 In some of the English de cisions where this question arose one or the other of the following four tests was applied
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 vs Warner2 and Stan dard Discount Co vs La Grange3
But the reasoning in the latter case was disapproved in AG vs Great Eastern Rail Co4
In Shutrook vs Tufnell5 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 vs Altrincham Urban Council 6 by Lord Halsbury who declined to follow the dictum in Salaman vs Warner2 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 vs Great Eastern Urban Council6 where an order made on an application for summary judgment under RSC 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 3 4 5 6 689 There are also a number of decisions on the question of finality by the Privy Council and the Courts in India
In Abdul Rehman vs D K Cassim  Sons1 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 section Kuppuswami Rao vs The King2 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 vs Dominion of India3 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 Sahebv
The State of Bombay4 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 vs The State of Uttar Pradesh5 the order on
which certificate under article 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 Bihar6 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 IA 76
3 5  2 4 6  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 article 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 vs Sujan Singh1 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 article 1341 c
The criminal proceedings said the Court were the proceedings against the respondents for an offence under section 61 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 ie 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 vs Patni2 would seem to throw light on these questions
There the Claims Officer under the Madhya Pradesh Abolition of Proprietory Rights Act 1950 1 19647SCR734
2  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 section 221 of the Act had not been taken
The appellants thereupon filed article 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 article 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 article 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 article 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 CI68 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 vs Madan Gopal1
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 section 4 of the Extra Provincial Jurisdiction Act 1949 was administered by the State of Orissa
The respondents gave notice to the State under section 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 vs State of UP2
A complaint was filed charging the applicant with offences inter alia under section 193 of the Penal Code he applicant filed an appeal before the Sessions Judge under section 476B of the Code of Criminal Procedure against the order filing the complaint
The Sessions Judge held that the order was bad as section 476 under which the complaint was filed stood impliedly repealed by section 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 ie 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 section 193 of the Penal Code and the other was the appeal which he 1 1952 SCR 28
2 AIR 1960 All
69 3 filed before the Sessions Judge alleging that the complaint was not justified and that it could not be filed under section 476 as it was impliedly repealed by section 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 vs Patni1 and State of Orissa vs Madan Gopall
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 section 205 read with section 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 ie that the complaint in respect of offences under sections 467 and 468 read with section 114 was not justified
When the appellant filed re vision in respect of the complaint for the remaining offence under section 205 read with section 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 vs Patni1 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 article 1341 c
1  2 1952 SCR 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 vs The State of West Bengal 1 it was held that the High Court had no jurisdiction to grant a certificate under article 1 3 4 1  c on a mere question of fact
In Bab vs 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 article 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 article 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 article 134l  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 section 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 section 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 article 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 section 476 of the Code of Criminal Procedure and directed thefiling of a complaint  against the appellant in respect of offences under sections 205 467 and 468 read with section 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 119561 SC R 639
2  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 sections 467 and 468 read with section 114 confirmed the order directing the filing of a complaint with regard to the offence punishable under section 205 read with section 114
A revision application filed by the appellant was dismissed by the High Court
In view of section 1951b of the Code of Criminal Procedure a prosecution for an offence punishable under section 205 read with section 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 section 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 vs Goverdhandas Vishindas Ratanchandl
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 vs In re2
A similar test has been applied for determining whether an order ill a criminal proceeding is final see section Kuppuswami Rao vs 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 article 1 34 1 c of the Constitution
The appeal is not maintainable and is dismissed
GC 1 1920 LR 47 IA 124
2 3 Appeal dismissed


Summary:
After an enquiry under section 476 of the Code of Criminal procedure the Judicial Magistrate Baroda ordered that the appellant he prosecuted for offences under sections 205 467 and 468 read with section 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 section 205 read with section 114
The High Court dismissed the appellant s revision pettion but granted a certificate under article 1341c
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 appellantwhether 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 vs Warner  Standard Discount Co vs La Grange  A Great Eastern Rail Co 1879 27 WR
759 Shutrook vs Tufnell  Bozson vs
Altrincham Urban Council  Abdul Rehman vs The King 1947 Cassim  Sons vs 60 IA
76 SKuppusami Rao vs King  Mohammad Amin Brothers Ltd vs Dominion of India Sardar Svedna Taher Saifuddin Saheb vs The State of Bombay  Jethainand and Sons vs The State of Uttar Pradesh   Premchand Satramadas vs State of Bihar   State of Uttar Pradesh vs Sujan Singh 1964 7 SCR and State of Orissa vs Madan Gopal 1952 SCR 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 article 1341c
693 D H Ramesh vs Patni   relied on
iii The High Court before it certifies the case in cases not covered by clauses a and b of article 1341c 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 article 1341 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 vs Slate of West Bengal   and Babu State of Uttar Pradesh relied on
Per Bachawat and Mitter JJ
dissenting  Whatever test is appliedin 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 article 1341c
695 B section Kuppuswamy Rao vs The King  relied on