MOHAN LAL MAGAN LAL THACKER v. STATE OF GUJARAT

Citation: [1968] 2 S.C.R. 685; 1967 INSC 303

Court: Supreme Court of India

Bench: K.N. WANCHOO , R.S. BACHAWAT, J.M. SHELAT, G.K. MITTER, C.A. VAIDYIALINGAM

Judgment date: 1967-12-15

Case summary

1967 INSC 303. Supreme Court of India judgment dated 1967-12-15. MOHAN LAL MAGAN LAL THACKER v. STATE OF GUJARAT. Read the judgment and case details on...

Judgment text

A 8 c D E F G H . MOHAN LAL MAGAN LAL THACKl expedient in the intl! Jt~t of juslice. This was a question of faci and thercfort- the J;nml ,>f ccrtificato was not justified. [694 8-FJ l/aripada Dey v. Stare of West Bengal, (1956] S. C. R. 639, and Babu C " . \•n•e of lfllar Pradesh, (19651 2 S. C. R. '17', rolicil on. Per Bacha\vat and Mitter, JJ. (dissenting) :-Wh t the said offence. That controversy be- ing still a live one, the order, according to him, was not final, the certificate granted by the High Court was incompetent and consequently the ~peal 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 proceed- ing of a High Court .... If the High Court certifies that tlie case is a fit one for appeal to the Supreme Court".

The question as to whether a judgiμent 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 SUPREME COURT REPORTS ( 1968] 2 S. C. R. purpose and interlocutory for another or final as to part and in- terlocutory as to part. The meaning of the two words "final" and "interlocutory" has, therefore, to be considered separately in re- lation to the particular purpose for which it is required. How- ever, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs en(l. \lirics or is made on an in dict1on and not the advisory jurisdiction confer- red 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 detenninc 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 Ut1ar Pradesh v. Sujan Singh(') docs not help because the proceeding in which the impugned order was passed was assumed to be an in' ~rlocutory 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 (I) ( c). The criminal proceedings, said the Court, were the proceedings against the respondent5 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 pro- duction of the document by the Union Government and that wa5 allowed by the Court. The order, therefore, was an interlocutory order pending the said proceedings. It did not purport to decide the right5 of the parties i. e. the State of Uttar Pradesh and the respondents, the accused. It only enabled the accused to hav~ the said document proved ~nd e. xhibited in the case and there- fore was a procedural step for adducin~ evidence. '11ie court also said that assurning 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 privi- lege 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(') would seem to throw light on these questions. There the Claims Officer under the Madhya Pradesh Abolition of Proprietory Rights Act. 1950 (I) (1%41 7 S. C. R. 734. (2) (19661 l S. C. R. ! 98. A B c D E F G H A B c D E F G H MOHAN LAL v. GUJARAT (She/at, /. ) 69J held in an application by the appellants that a debt due by them. to the respondents was a secured debt though th. e respondents had qbtained a decree therefor. He, accordingly, called upon the res~ pondents to file their statement of claim as ~equired by the Act. The respondents filed the statement, but the officer held that it was out of time and discharged the debt. In appeai the Commis- sioner 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 ju~isdiction to entertain or try the appeal. The High Court dismissed the petition s. ummarily. The contention was that the High Court's order was not a final order because. it did not decide the controversy bet- ween the parties and did not of its own force affect the rights of the parties or p11t an end to the controversy. This court observed: (1) that the word 'proceeding' in Art. 133 ~as a word of a very wide import, (2) that the contention that'ilie 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 re- vision remaine\i 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 . betwe. en 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 chal- lenged and the High Court either upheld it or did not, its ordec would be final. The effect of this decision is that a writ petition under Art. 226 is a proceeding in.

dependent of the . original· proceedings bet- ween 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 pend- ing 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 pro- ceeding independent of such original proceedings; and that if the L2 Sup Cl/68-14 692 SUPBJ! ME COUAT REPORTS i 1968) 2 S. C. R. 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 re- mained undisposed of. An illustration of such a case 1s to be found in the State of Orissa v.

Madan Gopal('). The dispute there was whe,tber the State Government had tbe 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 C,,de of Civil Pro- cedure but apprehensive that before the prescribed period ex- pired, the State might annul their leases filed a writ petition. The High· Court di~ \lOt decide the tiisputc but granted a man- damus 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 r¢mained to be deter- mined in the proposed suits.

Though the order had not deter- mined the rights of the parties, this Court negatived the conten- tion and held that the order was final as 'in view of the fact that with these orders the petitions were disposed of finally and noth- ing further remained to be done in respect of the petitio! li", Facts similar to the facts in the present case were in Durga Prasad v. State of U. P. ('). A complaint was filed charging the applicant with offences, imer alia, under s. 193 of the Penal Code. 1be applicant filed an appeal before the Sessions Judge under s. 4 76B 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 fil- ing the complaint. Io 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 beld 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 deter- mination 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 bet- ween 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 (l) [19llJ S. C. R. 28. (21 A. J. R. 196) All. 728. A B ( ll E f G H A B • c D E F G H MOHAN LAL v. GUJARAT (She/at, l. ) 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 Pro- cedure.

The order was held not to be final because it did not de- termine the latter controversy viz. , whether the complaint was justified and not on the ground that the controversy in the com- plaint 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 ! ht: Sessions Judge the High Court had held either that it was justified or not justified. This decision is in conformity with the ratio Jiiid down in Ramesh v. Patni(') and·State of Orissa v. Madan Gopa/(2) . The aforesaid' discussion leads to the conclusion that when the Magistrate ordered the filing of the complaint against the ap- pellant, 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 Qefore the Addi- tional Sessions Judge was against the order filing the complaint, the controversy therein raised being whether the Magistrate was justified iil 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 absenc. e 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 justi- fied or not was finally. decided. As observed in Ramesh v. Patni(') the finality of that order was not to be judged by co- relating 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(l)(c). (I) 11966] 3 S. C. R. 198. (2) [1952] S. C. R 28. 694 SUPREME COURT REPORTS [1968] 2 S. C. R. Even so, the next ques_tion is whether this was a case where the High Coun could have granted the' cenificatc. In Haripada Dey v.

The State of West Benga/,(1) it was held that the High Court had no jurisdiction to grant a certificate under An. 134(1)(c) on a mere question of fact. In Babu v. State of Uttar Pradesh, ( 2 ) it was again observed that the Constitution docs not confer ordinary criminal jurisdiction on this Coun except in cases covered. by clauses (a) and ( b) of An. 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 cenificate under An. 134 ( 1) ( c) which alone applies in this case. The question in the revision application before the. High Court was wliether the Magistrate was right in his conclu- sion that offences referred to in s.

195 ( 1 )(b) or ( c) of the Code of Criminal Procedure ar,:icared 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 becaue it appear- ed as if the single Judge in the language in which he passed his order meant that the High Court as a matter of Jaw woulc! never exercise its revisional iurisdiction in such cases. The order, how- ever, cannot mean that the High Court cannot entcnain and decide revision applications in respect of orders passed under 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 Coun 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 <lf law or principle, the High Court was not competent to certify the case under Art. 134 (I)( c). In this view it is not necessary to go into the contentions or. merits raised by the appellant's counsel. The appeal is not main- tainable and is dismissed. Bacbawat, 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 (t) it956] S. C. R. 639. (2) [1965] 2 S. C. R. 771. A B c - D • E F G H A c D E F G MOHAN LAL v. GUJARAT (Bachawat, /. ) 695 offences and it was expedient in the interests of justice that such an enquiry should be made.

In an :,ippeal filed after the com- plaint 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 tke order of the High Court con- firming the direction for the filing of a complaint in respect of the offence is that the oar 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 foJ! ow. The order of the High Court involves no determination of the merits of tlie 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 ( 1 ). If it does not finally decide the rights of the parties the order is interlocutory, though it conclusively determines some subordinate matter ano disposes of the proceed- ing in which the subordinate matter is in controversy. For. this reason, even an order setting aside an award is interlocutory, 6ee Croasdell and Cammell Laird & Co. , Limited v. In re('). A similar test has been applied for determining whether an order in a criminal proceeding is final, see S. Kuppuswami Rao v. The King( 3 ).

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. 134(1)(c) of the Constitution. The appeal is not maintainable and is dismissed. G. C. I I) [1920] L. R. 47 LA. 124. (2) [19,161 2 K. B 569. 13) [1947] F. C. R. 180. Appeal dismissed.

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