1. The question as to maintainability of these petitions for leave to appeal to Supreme Court under Article 134 of the Constitution of India arises in the following circumstances:
The petitioners were charged Under Section 143, 302 read with Section 149 and Section 324 read with Section 149, IPC before the learned Sessions Judge, Khammam. The learned Sessions Judge after trial, acquitted the accused of the charge Under Section 302 read with Section 141, IPC and convicted them Under Section 325 read with Section 149, IPC. The petitioners herein were sentenced Under Section 323, IPC. also. It is not necessary to give the details of the sentences imposed on them.
2. The petitioners filed Criminal Appeal No. 779/67 against their conviction. This appeal wag allowed on the ground that there was no trial and we ordered a retrial on the charges on which they were committed to the Sessions Court. S. R. No. 65255 of 1969 is a petition for leave to appeal to the Supreme Court against the order in Criminal Appeal No. 779 of 1967.
3. When the learned Session Judge took up the case for trial, the petitioners filed Cri. M. P. 74/69 Under Section 403, Criminal P.C. raising the contention that by virtue of the previous judgment of the learned Sessions Judge in the case, they were entitled to plead the right of autrefois acquit regarding the charge of murder Under Section 302, IPC The learned Sessions Judge dismissed this petition, aggrieved by which the petitioners filed Cri, R. C. No. 663 of 1969. We, by our order dated 27-11.1969 dismissed the Criminal Revision Cage. S. C. Cri. M. P. 272 of 1970 is filed by petitioners (?) aggrieved by that order. Leave in both the petitions is being sought under Article 134 of the Constitution.
4. Under Article 134v of the Constitution an appeal lies to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court certifies that case as a fit one for appeal to the Supreme Court. The question for consideration therefore is whether the decisions in the criminal appeal and the criminal revision case amount to judgment or final order.
5. The learned Counsel relying upon Mohan-lal v. State of Gujarat : 1968CriLJ876 , contended that the judgment delivered by us in the criminal appeal and the Criminal Revision case amounts to a final order or a judgment as it disposes of the proceedings in appeal and revision before us and therefore an appeal can lie to the Supreme Court under Article 134 of the Constitution,
6. The learned Public Prosecutor contends that the decision in criminal appeal does neither amount to judgment nor final order. It is not a judgment as the appeal did not end in any conviction or acquittal. It is not a final order because the proceedings against the accused are pending before the Sessions Court.
7. The Supreme Court in A I B 1968 S C 733 was considering a case where an application was filed Under Section 476 of the Criminal P.C., for filing a complaint against the appellant therein in respect of offences Under Sections 205, 467 and 468 rfad with Section 114 of the Penal Code. The Magistrate ordered the filing of the complaint against the appellant under all the aforesaid sections. On appeal the learned additional Sessions Judge held that the said complaint was justified only in respect of the offence Under Section 205 read with Section 114. In revision by the appellant, the High Court dismissed the application, but give a certificate under Article 134(l)(c) of the Constitution. A preliminary objection was raised in the Supreme Court that the High Court's order dismissing the revision was not a final order. Their Lordships of the Supreme Court by majority held that there were two distinct proceedings though parties were the same-one proceeding related as to whether the complaint should be filed against the appellant and the other whether the appellant had committed the offence charged against him there, in. The order of the High Court dismissing the revision petition disposed of finally the proceedings regarding the question as to whether the complaint was justified or not.
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 the 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 134(1)(c).
8. As regards the decisions in Abdul Rahman v. D.K. Cassim & Sons A.I.R. 1933 P.C. 58, Kuppuswami Rao v. King A.I.R. 1949 F C 1. Mohd. Amin Bros. Ltd. v. Dominion of India A.I.R. 1950 F C 77, Sardar Syedna Taher Saifuddin Sahib v. State of Bombay A.I.R. 1955 SC 253, and Jethananad & Sons v. State of U. P. : 3SCR754 , their Lord-Ships observed in Para. 7 thus; -
But these were cases where the impugned orders were passed in appeals or revisions and since an appeal or a revision is in continuation of the original suit or proceeding the test applied wa3 whether the order disposed of the original suit or proceeding, If it did not, and the suit or proceeding was alive one, yet to be tried, the order was held not be final. Different te3ts have been applied however, to orders made in proceedings independent of the original or main proceeding.
Thus, the Supreme Court observed that in oases where impugned orders are passed in appeals or revisions, the test applied is whether the order disposes of original suit or proceedings. It is only in cases where the orders are made in proceedings independent of the original or main proceeding that different tests are applied. In the case before us, orders have been passed in the appeal and the revision and therefore the test that has to be applied is whether the orders dispose of the proceedings. It is not a case where the orders have been made by us in proceedings independent of the original proceedings. In our opinion therefore the decision cited by the learned Counsel does not help him.
9. The question as to the interpretation of the expression ''Judgment' or 'final order' in a criminal case, came up for consideration before the Federal Court in A I R 1949 E1 C 1. After review of a number of cases, their Lordships observed that a ''Final Order' must be an order which finally determines the points in dispute and brings the case to an end,'
10. As regards the word 'Judgment', it observed in para 14:-
In India in Criminal Procedure Code, the word 'Judgment' is used to indicate the termination of the case by an order of conviction or acquittal of the accused.
Applying the above said test, the orders in criminal appeal and the criminal revision are not final orders because the criminal case against the accused has not come to an end and is still pending. They are not judgments as they are neither orders of conviction nor acquittal of the accused.
11. The Supreme Court in Madanraj v. Jalamchand Lodha : 1960CriLJ1151 , while considering an appeal by special leave against the order passed by the High Court of Madras by which the order of acquittal passed in favour of the appellant by the trial Magistrate had been set aside and the proceedings were remitted to the Court below for disposal in accordance with law, observed :-
All that the High Court has done is, to direct that the ca3e should be tried afresh. In its very nature the order of remand passed by the High Court does not finally decide the points in the case and it is essentially of an interlocutory character.
They refused to interfere under Act. 136 of the Constitution as the Supreme Court did not generally interfere with interlocutory orders.
12. Following the observations of the Supreme Court in : 1960CriLJ1151 , Division Bench of Calcutta High Court in Dilip Kumar Ghosh v. State : AIR1982Cal417 held that where the High Court sets aside the acquittal of the accused and directs retrial, the result is, not the termination of the case started against the accused, but its revival. Such an order keeps alive the case and cannot be said to be a judgment or final order within the meaning of Article 134(1) of the Constitution. The learned Counsel brought to oar notice another decision of the Calcutta High Court in Abhinash Chandra v. Bimal Kumar : AIR1962Cal113 , which decides to the contrary. The Division Bench in : AIR1962Cal417 referred to the earlier case and dissented from it. In view of the pronouncements of 'the Federal Court and the Supreme Court, we feel that the later decision of the Calcutta High Court lays down the correct law.
13. Applying the aforesaid decisions, it cannot be said that our orders in Criminal Appeal and Criminal Revision are either judgments or final orders. Those orders are only interlocutory orders and no appeals can lie under Article 134(1) of the Constitution to the Supreme Court.
14. In the result both the applications for leave to appeal are dismissed.