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Electrical Manufacturing Co. Ltd., Calcutta Vs. D.D. Bhargava - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Misc. (S.C.A.) No. 163 of 1966
Judge
Reported inAIR1967Delhi97; 1967CriLJ1494
ActsConstitution of India - Articles 134, 134(1) and 227; Code of Criminal Procedure (CrPC) , 1898 - Sections 439 and 561-A
AppellantElectrical Manufacturing Co. Ltd., Calcutta
RespondentD.D. Bhargava
Appellant Advocate Ved Vyas, Senior Adv. and; H.L. Anand, Adv
Respondent Advocate R.L. Mehta and ; Avtar Singh, Advs.
Cases ReferredRamesh v. Gendalal Mtoilal
Excerpt:
.....its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as..........before the court finally.it is argued by the respondent that an order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceedings and if after the order the civil proceedings still remain to be tried and if the rights in dispute between the parties have to be determined, then the order is nto a final order. the same test applies to cases of final orders within the meaning of the art. 134.(3) on the toher hand, shri ved vyas has referred me to state of punjab v. shadi lal : air1960sc397 , in which the head-ntoe reads as under:-'the respondent was employed as an accountant in the office of the deputy inspector general of police in 1949. he was said to have embezzled certain sums of money in 1941 which came to light in 1950. a case.....
Judgment:
ORDER

(1) This is a petition under Article 134(1)(c) of the Constitution for a certificate of fitness for appeal to the Supreme Court of India from my order dated 21-11-1966 dismissing the petitioner's revision application presented under sections 439 and 561-A of the Code of Criminal Procedure and under Article 227 of the Constitution.

(2) On behalf of the respondent. It is objected that the impugned order cannto be described to be final order within the meaning of Article 134(1)(c) and, thereforee, the present application is incompetent. It would be open to the petitioner, according to this submission, to apply to the Supreme Court for special leave to appeal under Article 136 of the Constitution. In support of this objection, the respondent's learned counsel has placed reliance on the State of U.P. v. Col. Sujan Singh : 1965CriLJ94 , according to which an order cannto be stated to be 'final order' within the meaning of that expression in Article 134 of the Constitution if it does nto of its own force blind or affect the rights of the parties.

Reliance for this view has in this judgment been placed on an earlier decision of the Supreme Court in Premchand Satramdas v. State of Bihar : [1951]19ITR108(SC) . Reference by the respondent's learned counsel has also been made to a decision of the Federal Court in Kuppuswami Rao v. The King , which lays down that 'final order' must be an order which finally determines the points in dispute and brings the case to an end. It is further explained in this decision that to constitute a final order, it is nto sufficient merely to decide an important or even a vital issue in the case, but the decision must nto keep the matter alive and provide for its trial in the ordinary way. An interlocutory order made on a preliminary objection in the course of a criminal trial has been held in this case nto to be a final order because it is nto on a point which, decided either way, would terminate the matter before the Court finally.

It is argued by the respondent that an order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceedings and if after the order the civil proceedings still remain to be tried and if the rights in dispute between the parties have to be determined, then the order is nto a final order. The same test applies to cases of final orders within the meaning of the Art. 134.

(3) On the toher hand, Shri Ved Vyas has referred me to State of Punjab v. Shadi Lal : AIR1960SC397 , in which the head-ntoe reads as under:-

'The respondent was employed as an accountant in the office of the Deputy Inspector General of Police in 1949. He was said to have embezzled certain sums of money in 1941 which came to light in 1950. A case was registered against him. Three cases were started against the respondent under secs. 409, and 465, Penal Code and Section 5(2) of the Prevention of Corruption Act. The three cases were sent to the Magistrate before whom it was objected that the charges under Section 409 could nto be tried by the Magistrate. The objection was allowed. The State preferred three appeals in the High Court. The appeals were dismissed by the High Court but it held that the appellant was entitled to a grant of a certificate to appeal to the Supreme Court under Article 134(1)(c). A preliminary objection having been taken on behalf of the respondent that the certificate could nto be granted.

Held that the High Court had the power to grant the certificate under Article 134(1)(c) of the Constitution and in the circumstances of the case it rightly granted such a certificate.

Held further that the respondent could be tried for an offence under Section 409, Penal Code, and the Courts below were wrong in coming to the conclusion that the respondent could nto be tried for that offence.'

Main reliance has, however, been placed by Shri Ved Vyas on a recent decision of the Supreme Court in Ramesh v. Gendalal Mtoilal : [1966]3SCR198 , where the question related to an appeal to the Supreme Court from an order of the High Court dismissing in liming an application under Article 220 of the Constitution. The following passage is specifically relied upon by the learned counsel:-

'But the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does nto. In either case the controversy in the High Court is finally decided. To judge whether the order is final in that sense it is nto always necessary to correlate the decision in every case with the facts in controversy especially where the question is one of jurisdiction of the Court or tribunal. The answer to the question whether the order is final or nto will nto depend on whether the controversy is finally over but whether the controversy raised before the High Court is finally over or nto. If it is, the order will be appealable provided the toher conditions are satisfied, toherwise nto.'

(4) In my opinion, the Supreme Court decision in Ramesh's case : [1966]3SCR198 must be confined to its own facts and the ratio of that decision cannto help the present petitioner. Of course, the petitioner's learned counsel has tried to seek assistance from the reported case by submitting that just as that case dealt with an application under Art. 226 of the Constitution, the present case too arises out of an application under Art. 227 of the Constitution presented in this court for setting aside the order of the Court below. In this respect it is argued, the two cases bear a very close resemblance.

I, however, regret my inability to sustain this submission. The present is, in substance, a case in which this court's revisional jurisdiction under Sections 439 and 561-A of the Code of Criminal Procedure has been invoked. The addition of Article 227 of the Constitution in the heading of the application does nto seem to me to change the essential nature of the application and may nto appropriately be considered to convert it into a writ petition so as to attract the ratio of the decision in Ramesh's case : [1966]3SCR198 .

The relief sought in this Court was that the order of the Court below be set aside and the criminal proceedings held to be incompetent for want of the condition precedent. This plea was rejected. The present case appears to me to be more akin to the case if Kuppuswamy Rao the ratio of which decision does nto seem to me to have been disapproved or dissented from by the Supreme Court in Ramesh's case. : [1966]3SCR198 .

(5) But this apart, even on the merits, I am unable to persuade myself to certify this case to be a fit one for appeal to the Supreme Court. It is true that this Court has a wide discretion and it may nto be necessary to be convinced that this Court's decision is, or is likely to be wrong, before granting the requisite certificate under Article 134 of the Constitution, but at the same time, this Court cannto ignore this general settled principle that appeal to the Supreme Court in criminal matters likes in exceptional and special circumstances when substantial and grave injustice has been done and the question presents features of sufficient gravity to warrant review of the decision of the High Court.

The grant of a certificate under Article 134(1)(c) under which clause alone the petitioner can claim a certificate, is nto a matter of course but power under this clause is to be exercised after considering what difficult questions of law or principle are involved in the case requiring further consideration and clarification by the Supreme Court. There must be some substantial and grave injustice caused by disregard of the forms of legal process or violation of principles of natural justice. The suggestion that there may be a number of similar cases is of little moment because unless the above test is satisfied, this Court would nto be justified in granting the requisite certificate.

(6) In the case in hand, there is a clear cut statutory provision and I must nto be understood to mean any disrespect to the eminent counsel appearing at the bar, when I say that I am unconvinced that any serious or difficult question of law arises in the present case which, in the larger interests of justice, requires clarification or settlement by the Supreme Court.

(7) For the foregoing reasons, this petition fails and is hereby dismissed.

(8) Petition dismissed.


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