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Mohanlal Maganla Thakkar Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtGujarat High Court
Decided On
Case NumberCriminal Appln. No. 26 of 1965
Judge
Reported inAIR1967Guj42; 1967CriLJ194
ActsConstitution of India - Article 134 and 134(1); Code of Criminal Procedure (CrPC) , 1898 - Sections 476, 476-B and 476-BB
AppellantMohanlal Maganla Thakkar
RespondentState of Gujarat
Appellant Advocate S.H. Sheth, Adv.
Respondent Advocate A.D. Desai, Asst. Govt. Pleader
Cases ReferredAmand v. Home Secretary and Minister of Defence of Royal Netherlands Government
Excerpt:
..... - ' article 134(1)(c) requires that before a certificate could be issued, the following requirements must be satisfied: the second requirement clearly follows from the concluding part of the clause. 476, it would appear that before filing a complaint, the court has to be satisfied that it is expedient in the interest of justice that an inquiry should be made. the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and, if a case be stated by them as to their right so as to enforce it and that case is determined by the high court, no appeal lies. , on january 11, 1965 holding that this was a matter in which this court should never interfere in revision, was a final order within the meaning of article 134(1)(c) of the..........there must be an order. 2. it must be a final order. 3. the order must have been passed in a criminal proceeding. 4. the case must be a fit one for appeal to the supreme court.there can be no doubt about the fact that the order passed by raju j., in criminal revision application no. 378 of 1964 is a final order in a criminal matter. at page 740 in halsbury's laws of england, third edition, volume 22, the term 'judgment and order' has been referred to as meaning in their wider sense, to include any decision given by a court on a question or questions at issue between the parties to a proceeding properly before the court. at page 743 in the same volume, it has been stated that:'in general a judgment or order which determines the principal matter in question is termed 'final'. a final.....
Judgment:
ORDER

(1) This matter has arisen on the following facts which may briefly be stated. The petitioner in this Criminal Application is the original accused who is an advocate practising at Baroda. He appeared as an advocate for some of the accused who had applied for bail and who were ordered to be released on bail by the learned Judicial Magistrate, First Class, 3rd Court, Baroda. A person purporting to be Udesing Abhesing stood surety for two accused persons who were ordered to be released on bail and the petitioner advocate identified the surety at the time when that person made an affidavit and executed a bail-bond in connection with the bail. The surety was accepted by the Court and the two accused were released on bail. Subsequently one of the two accused who were released on bail did not remain present in the Court and thereupon a notice was issued to the surety Udesing Abhesing who, when he appeared, in response to the notice before the learned Magistrate, raised a contention that he had not become surety for the two accused persons. He denied having executed any bail bond for the accused who remained absent. It appeared that some one had possibly impersonated Udesing in the matter of making the affidavit and in executing the bail bond. The learned Magistrate therefore issued a notice to the petitioner as regards his identification of the surety Udesing. The petitioner filed a reply and the learned Magistrate decided that a complaint should be filed against him in respect of offences punishable under S. 205, 467 & 468 all read with S. 114, I.P.C. Against this order the petitioner preferred an appeal to the Court of Sessions at Baroda who dismissed the appeal on the ground that as the complaint was not then filed, an appeal was incompetent and thereafter a complaint was filed by the learned Judicial Magistrate thereupon the petitioner filed an appeal to the Sessions Judge and the learned Extra Additional Sessions Judge, Baroda, partly allowed the appeal and set aside the order of the trial Court in respect of the offences punishable under Ss. 467 and 468 I.P.C. both read with S. 114 I.P.C. The learned Judge confirmed the order of the learned Magistrate directing the prosecution of the petitioner in respect of the offence punishable under S. 205 read with S. 114. Against this order, Criminal Revision Application No. 378 of 1964 was filed in the High Court. The matter was placed before Divan J., who admitted the matter and issued a rule. The revision application came up for final hearing before Raju J., who passed the following order on January 11, 1965:

'Oral Judgment.

This is a matter in which this Court should never interfere in revision. The revision application is, therefore, dismissed.'

Thereafter the present Criminal Application was taken out for a certificate under Art. 134(1)(C) of the Constitution of India that the case was fit one for appeal to the Supreme Court. On a division of opinion between the two learned Judges who heard the application under Article 134(1)(C) the following point was referred under Article 36 of the Letters Patent and this is how the matter has come up for hearing:

'When a person, who is directed to be prosecuted by a Magistrate under S. 476, Criminal Procedure Code, and whose appeal is dismissed by the Sessions Judge under S 476B of the same Code, files a criminal revision application in the High Court for quashing the order directing the prosecution, and the High Court declines to exercise revisional jurisdiction and dismisses the criminal revision application made in the matter, does it pass a final order within the meaning of Article 134 of the Constitution?'

Article 134(1)(C) requires that before a certificate could be issued, the following requirements must be satisfied:

1. There must be an order.

2. It must be a final order.

3. The order must have been passed in a criminal proceeding.

4. The case must be a fit one for appeal to the Supreme Court.

There can be no doubt about the fact that the order passed by Raju J., in Criminal Revision Application No. 378 of 1964 is a final order in a criminal matter. At page 740 in Halsbury's Laws of England, third edition, Volume 22, the term 'judgment and order' has been referred to as meaning in their wider sense, to include any decision given by a Court on a question or questions at issue between the parties to a proceeding properly before the Court. At page 743 in the same volume, it has been stated that:

'In general a judgment or order which determines the principal matter in question is termed 'final'. A final judgment has been defined as a 'judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established' or as 'a judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour either of the plaintiff or of the defendant'. An order made in chambers by consent , ordering that the action be dismissed and the plaintiffs pay to the defendants their taxed costs, is final, and an order dismissing an originating summons is a final order. A final order is none the less final by reason that it is subject to appeal, and a judgment may be final although it directs inquiries, or deals with costs only, or is made on an interlocutory application or reserves liberty to apply.'

What is a final order has been discussed in the case of V.M. Abdul Rahman v. D.K. Cassim and Sons that:

'Lord Cave in delivering the judgment of Board laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality whether the order 'finally disposes of the rights of the parties,' and he held that the order then under appeal did not finally dispose of those rights, but left them 'to be determined by the Court in the ordinary way.' It should be noted that the appellate Court in India was of opinion that the order it had made went to the roof of the suit, namely, the jurisdiction of the Court to entertain it', and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. 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 under S. 109(A) of the Code.'

The test of finality, therefore, as can be seen from the aforesaid decision is whether the order finally disposes of the rights of the parties and whether after the order, the suit is a live suit in which the rights have still to be determined. In Salaman v. Warner (1891) 1 QB 734 it has been observed in the judgment of Lord Esher at page 735 that:

'If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.'

In the case of Premchand v. State of Bihar : [1951]19ITR108(SC) the question was whether an order passed dismissing an application under S. 21(3) of the Bihar Sales Tax Act to direct the Board of Revenue, Bihar to state a case and refer it to the High Court, was or was not a final order. It was held by the Supreme Court that such an order was an advisory order and did not bind or affect the rights of the parties. The relevant observations occur at page 804 (of SCR): (at p 15 of AIR) which are as under:

'In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order, and secondly, that it was passed in the exercise of the original or appellate jurisdiction of the High Court. The second requirement clearly follows from the concluding part of the clause. It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does not of its own force bind or affect the rights of the parties. All that the High Court is required to do under S. 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue.'

Reference was also made to the case of Jethan and Sons v. State of Uttar Pradesh, AIR 1961 SC 794 where it was observed that:

'In our view, the order remanding the cases under S. 151 of the Criminal Procedure Code is not a judgment, decree or final order within the meaning of Art. 133 of the Constitution. By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. Such an order remanding the cases for retrial is not a final order within the meaning of Art. 133(1)(C). An order is final if it amounts to a final decision relating to the rights of the parties in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Art. 133.'

In that case, the High Court set aside the order passed by the learned Civil Judge and remanded the case to the trial Court with a direction to allow the appellants and if need be, the respondent to amend their pleadings and frame fresh issues and allow the parties an opportunity to lead evidence and then to decide the case on such evidence. It was under these circumstances that the Supreme Court made the above observations. The test of finality thus appears to be as to whether the order finally determines the case and brings the case to an end and whether it affects the rights of the parties.

(2) Let us now examine the relevant provisions of the Criminal Procedure Code in the light of the above principles. Chapter XXXV of the Criminal Procedure Code relates to the proceedings in case of certain offences affecting the administration of justice. Section 476, Criminal Procedure Code provides as under:

'(1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in S. 195, sub-section (1), clause (b) or clause (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof, in writing signed by the Presiding Officer of the Court, and shall forward the same to a Magistrate of the First Class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, and the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate.

Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.

For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the First Class.

(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200.

(3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided.'

Section 476A relates to the exercise of power by the superior Court where the subordinate Court has omitted to exercise its powers under S. 476 and S. 476B provides for appeal by any person on whose application the Court has refused to make a complaint under S. 476 or 476A or against whom such a complaint has been made. The scheme, as it appears from these sections, shows that a proceeding instituted under S. 476, Criminal Procedure Code is an independent proceeding, though connected with the main case or proceeding in the course of which the offence is said to have been committed. If we refer to the provisions of S. 476, it would appear that before filing a complaint, the Court has to be satisfied that it is expedient in the interest of justice that an inquiry should be made. Such a preliminary inquiry is permissible under the provisions of S. 476 and in the instant case, it is not disputed that the learned Magistrate had called upon the petitioner to show cause why a complaint should not be lodged against the petitioner. Under S. 476-B a provision is made that the person against when such a complaint has been made may appeal to the Court to which the other Court is subordinate and it is open to the superior Court in direct the withdrawal of such a complaint. It is thus clear that the appellate Court has the power to interfere with the order passed by the subordinate Court directing a complaint in respect of the offences mentioned in S. 195(1)(B) or (c) of the Criminal Procedure Code. The main ingredient of S. 476 of the Criminal Procedure Code thus is that the Court which decides to lodge the complaint must form an opinion that it is expedient in the interests of justice that an inquiry to be initiated by the complaint lodged by it should be made. It would therefore follow that in an appeal, provided for by S. 476B, one of the main questions for consideration would be about the finding that it was expedient in the interests of justice that a complaint should be filed. In the instant case, such an appeal was filed by the petitioner and it was partially dismissed so far as the offence punishable under S. 205 read with S. 114 I.P.C. was concerned. If therefore the order passed by the appellate Court was not permitted to be agitated in a revision application, it would be difficult to challenge the finding that it was not expedient in the interest of justice that the complaint should have been filed. In fact, the Legislature seems to have provided that it would be difficult thereafter to challenge such an order directing the lodging of the complaint on the ground that it was not expedient in the interests of justice. It also appears that a proceeding which is initiated by a Civil, Revenue or Criminal Court under the provision of S. 476 Criminal Procedure Code is an independent proceeding and an order which would finally decide the relevant questions required to be considered under that section, would be a final order which would, so far as that person was concerned, put an end to the matter and decide the rights of the parties. The order finally determines the matter and brings the proceedings to an end.

(3) There can also be no doubt that the proceeding out of which the present matter has arisen is a criminal proceeding. The word 'proceeding' has not been defined in the Criminal Procedure Code. In the Shorter Oxford English Dictionary at page 1590, the word `proceeding' has been referred to as under:

'The instituting or carrying on of an action at law; a legal action or process, any act done by authority of a court of law; any step taken in a cause by either party.'

It has not been seriously disputed that the present proceeding constitutes a proceeding within the meaning of Article 134(1), but the main dispute centered round the contention that it was not a criminal proceeding. In A.W. Meads v. Emperor , it has been observed at page 23 that:

'Whilst as indicated above, it may be proper in certain context to include Court-martial proceedings in the phrase `criminal proceedings', in our opinion the ordinary person who uses the phrase 'civil or criminal proceedings' usually intends only to indicate the ordinary civil and criminal proceedings which can be taken in accordance with the ordinary law of the land, and does not have in mind the special and peculiar code of Military Law applicable only to the limited classes subject to it and the military offences created by that Code. In other words in our judgment the ordinary primary meaning of the phrase 'civil or criminal proceeding' indicates only the civil or criminal proceedings capable of being instituted under the ordinary law of the land, and should not be held to include proceedings under military law unless there be a contest which so indicates.'

In the case of Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government, 1943 AC 147 the House of Lords was considering a question regarding the interpretation of the words 'criminal cause or matter' and in the speech by Lord Chancellor Viscount, it was observed that:

'If the matter is one, the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a Court claiming jurisdiction to do so, the matter is criminal.'

In his speech at page 162 of the report, Lord Wright has pointed out that:

'The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or fine, it is a 'criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English Court, is an order in a criminal cause or matter, even though the order taken by itself, is neutral in character and the might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of operation of English Law, the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered an order in a criminal cause or matter.'

At page 164 of the report it has been observed by Lord Porter that:

'This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g. The recovery of a poor rate is not of itself a criminal matter, but its enforcement by Magistrates by warrant of distress is, and, if a case be stated by them as to their right so as to enforce it and that case is determined by the High Court, no appeal lies.'

On the same page it has been observed that:

'The proceeding from which the appeal is attempted to be taken must be a step in criminal proceeding, but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the Magistrate in jeopardy of a criminal charge.'

The matter arising under S. 476 undoubtedly involves the consideration of some charge in relation to an offence and if an order under that section is made, it would involve the person against whom such an order is made to a criminal prosecution. When the High Court decided on January, 11, 1965 that this was a matter in which the Court should never interfere in revision, it was decided against the appellant that the order passed in appeal against him should stand. As already stated earlier, one of the main ingredients of S. 476 is that the Court deciding to file a complaint must form an opinion that it is expedient in the interests of justice that an inquiry to be initiated by the complaint lodged by it should be made. If the order passed by the learned Magistrate and the learned Extra Additional Sessions Judge is not allowed to be challenged in a revision application, as stated already, it would be difficult to challenge the order after the hearing of the matter was over on the ground that it was not expedient in the interests of justice that a complaint should have been allowed.

(4) The aforesaid discussion leads us to the conclusion that when an order is passed in a criminal revision application in the High Court for quashing the order directing the prosecution against a person under S. 476 Criminal Procedure Code whose appeal has been dismissed by the Sessions Judge under S. 476-B of the same Code, and the High Court declines to exercise its revisional jurisdiction and dismisses the criminal revision application made in the matter, such an order passed by the High Court is a final order within the meaning of Article 134 of the Constitution of India and in my judgment, therefore, the order passed by Raju, J., on January 11, 1965 holding that this was a matter in which this Court should never interfere in revision, was a final order within the meaning of Article 134(1)(c) of the Constitution of India and therefore a certificate can be granted under that Article if the other provisions of that Article was satisfied. I would therefore answer the question accordingly.

(5) Answer accordingly.


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