Skip to content


Mohanlal Maganlal Thakkar Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR331
AppellantMohanlal Maganlal Thakkar
RespondentState of Gujarat
Cases ReferredAnand v. Home Secretary and Minister of Defence of Royal Netherlands Government
Excerpt:
- - i have made it clear in the first sentence of my judgment that this is a matter in which this court should never interfere in revision, and thereby i clearly expressed my feeling that i would not interfere in the revision. the court before filing the complaint has to be satisfied, as shown by the words of section 476, that it is expedient in the interests of justice that an inquiry should be made. 8. 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. if we refer to the provisions of section 476, it would appear that before filing a complaint, the court has to be satisfied that it is expedient in the interests of justice that an inquiry.....raju, j.1. in criminal revision application no. 378 of 1964, i passed the following order:this is a matter in which this court should never interfere in revision. the revision application is, therefore, dismissed.i, therefore, declined to exercise the revisional jurisdiction. by declining to exercise the revisional jurisdiction, i did not pass any order. in fact, i passed no orders affecting the conviction or acquittal. in, fact, no final orders had been passed by the trial court. the trial of the petitioner has yet to go on. in view of the nature of the complaint, i felt that this is a matter, which must be tried, including the question of intention which is a question of fact. it is true that i added a sentence to the effect that 'the revision application is, therefore, dismissed'......
Judgment:

Raju, J.

1. In Criminal Revision Application No. 378 of 1964, I passed the following order:

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

I, therefore, declined to exercise the revisional jurisdiction. By declining to exercise the revisional jurisdiction, I did not pass any order. In fact, I passed no orders affecting the conviction or acquittal. In, fact, no final orders had been passed by the trial Court. The trial of the petitioner has yet to go on. In view of the nature of the complaint, I felt that this is a matter, which must be tried, including the question of intention which is a question of fact. It is true that I added a sentence to the effect that 'the revision application is, therefore, dismissed'. Strictly speaking, this sentence need not and should not have been written. By refusing to exercise revisional jurisdiction, the Court does not dismiss a revision application as such. There is no provision in the Criminal Procedure Code for dismissing revision applications. But there is a provision for dismissing criminal appeals both summarily and also finally. A provision for summary dismissal of a criminal appeal is to be found in Section 421 of the Criminal Procedure Code. A provision for final disposal of a criminal appeal after hearing is to be found in Section 423 of the Cri. Pro. Code. There is no such provision regarding the dismissal of criminal revision applications. The sentence 'the revision application is therefore dismissed' is, therefore, strictly speaking meaningless and should not have been added. That sentence may have some use for collecting statistics, but it has no judicial significance. I have made it clear in the first sentence of my judgment that this is a matter in which this Court should never interfere in revision, and thereby I clearly expressed my feeling that I would not interfere in the revision. In fact, it is not an order in any way at all, because it does not decide the real merits of the criminal case. On the facts of the case, the two Courts below have held that there is a prima facie case. On such a finding in a case such as this the High Court should never interfere in revision. If the facts alleged are true, the High Court will never say that a prosecution is not in the interests of justice. The question of intention is one of fact. On the facts of this case I feel that the High Court should never interfere in revision at this stage. I, therefore, declined to exercise revisional jurisdiction.

2. I am, therefore, of the view that this is not a matter to which Article 134 of the Constitution would apply, because under that Article there must be a judgment, final order or sentence in a criminal proceeding of a High Court before that Article can apply. I am, therefore, of the opinion that Article 134 of the Constitution does not apply to my order.

Divan, J.

3. The petitioner in this Criminal Application is the original accused. He is an Advocate practising at Baroda. In the course of his professional work, the petitioner appeared for accused persons, who were ordered to be released on bail by the learned Judicial Magistrate, First Class, Third Court, Baroda. One person purporting to be Udesing Abhesing stood surety for the two accused persons, who were ordered to be released on bail and the petitioner identified the surety at the tune when the said person made an affidavit and executed the bailbond in connection with the bail. The surety was accepted and the two accused were released on bail. Thereafter one of the two accused persons thus released on bail absented himself on three consecutive hearings from the Court of the learned Judicial Magistrate and thereupon a notice was issued to the surety, Udesing Abhesing. In response to the said notice, Udesing appeared before the learned Magistrate and contended that he had not become surety for the two accused persons and denied having executed any bail-bond for the accused who had remained absent. In the proceedings before the learned Magistrate it came out that some one had impersonated Udesing Abhesing in the matter of making an affidavit and executing the bail bond. Thereupon, the learned Magistrate issued a notice to the petitioner in connection with his identification of the surety Udesing Abhesing. The petitioner filed a reply and ultimately the learned Magistrate decided that a complaint should be filed against the petitioner in respect of offences punishable under Sections 205, 467 and 468, all read with Section 114 of the Indian Penal Code, as according to the learned Magistrate a prima facie case had been established against the petitioner. By his order, dated August 31, 1963, the learned Magistrate ordered that a complaint be filed against the petitioner for having committed an alleged offence under Section 205 read with Section 114, Section 467 read with Section 114 and Section 468 read with Section 114 of the I.P.C. Against this order, the petitioner preferred an appeal to the Court of Session at Baroda and the learned Sessions Judge dismissed that appeal on the ground that as the complaint had not yet been filed, the appeal was incompetent. Thereafter, the complaint was filed by the learned Judicial Magistrate in respect of the offences alleged to have been committed by the petitioner and punishable under the sections mentioned above. After the complaint was filed, the petitioner filed an appeal to the Sessions Judge and the learned Extra Additional Sessions Judge, Baroda, who disposed of this appeal, partly allowed the appeal and set aside the order of the trial Court in respect of the offences punishable under Sections 467 and 468 both read with Section 114 I.P.C. However, the learned Judge confirmed the order of the learned Magistrate, directing the prosecution of the petitioner in respect of the offence punishable under Section 205 read with Section 114 of the I.P.C. It is against this order passed in these criminal proceedings that Criminal Revision Application No. 378 of 1964 was filed in this High Court. At the admission stage it was placed before me and I admitted the matter and issued rule. The Revision Application came up for final hearing before my learned brother Raju J. on January 11, 1965 and my learned brother was of the view that this was a matter in which Court should never interfere in revision and he, therefore, dismissed the revision application. The present Criminal Application has been taken out for a certificate under Article 134(1)(c) of the Constitution of India that this case is a fit one for appeal to the Supreme Court.

4. I have had the benefit of reading the judgment of my learned brother Raju J. in connection with the present Criminal Application. I regret that I am unable to agree with his reasoning and conclusion. My learned brother is of the view that when the Criminal Revision Application was disposed of, no orders affecting conviction or acquittal were passed by the High Court. Since no final order has been passed by the trial Court and since the trial of the petitioner had yet to go on, the High Court, in his opinion, should never interfere in revision.

5. In my opinion, under the scheme of Sections 476A and 476B of the Criminal Procedure Code, the proceeding which is initiated by a Civil, Revenue or Criminal Court under the provisions of Section 476 is an independent proceeding though connected with the main case or proceeding in the course of which the alleged offence is said to have been committed. The Court before filing the complaint has to be satisfied, as shown by the words of Section 476, that it is expedient in the interests of justice that an inquiry should be made. A preliminary inquiry which is permissible under the provisions of Section 476 was in fact held when the learned Magistrate called upon the petitioner to show cause why the complaint should not be lodged against the petitioner. Under Section 476B, the person against whom such a complaint has been made may appeal to the Court, to which the former Court is subordinate and it is open to the Superior Court to direct the withdrawal of the complaint. Thus, under the provisions of Section 476B Cr.P.C. it is apparent that the appellate Court can interfere with the order passed by the subordinate Court in respect of an order directing that a complaint in respect of one of the offences mentioned in Section 195(1)(b) or (c) Cr.P.C. be filed. The petitioner came in revision to the High Court against the order passed by the learned Extra Additional Sessions Judge in appeal provided for by Section 476B of the Code. When this High Court, as held by Raju J. in his order, decided on January 11, 1965, that this was a matter in which this Court should never interfere in revision, it was decided against the appellant that the order passed in appeal against him should stand. One of the essential ingredients of Section 476 Cr.P.C. is that the Court which decides to lodge the complaint must form the opinion that it is expedient in the interests of justice that an inquiry be initiated by the complaint lodged by it should be made. The appeal provided for by Section 476B Cr.P.C. contemplates, inter alia, an appeal as regards the finding that it is expedient in the interests of justice that such a complaint should be lodged. Such an appeal was in fact filed by the petitioner and the appeal is partially dismissed so far as the offence punishable under Section 205 read with Section 114 of the I.P.C. is concerned. Thus, if that order passed by the learned Extra Additional Sessions Judge is not allowed to be canvassed in the Revision Application, in my opinion, it would be very difficult to contend in the order passed after the entire hearing of the matter is over that it was not expedient in the interests of justice that the complaint should have been lodged. The Legislature has provided for an appeal against the order contemplated under Section 476 of the Cr.P.C. and, therefore, by necessary implication, after the inquiry initiated by the learned Magistrate is completed and the conviction is arrived at, it would not be open to the accused to contend that the initial order directing the lodging of the complaint was not justified on the ground that it was not expedient in the interests of justice to lodge the complaint. In my opinion, therefore, the order passed by my learned brother 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 and, therefore, a certificate should issue under the provisions of that clause of the said Article.

6. As regards the merits of the case, I am further of the opinion that this is a fit case in which a certificate under Article 134(1)(c) of the Constitution should issue. As there is a difference of opinion between my learned brother and myself regarding the nature of the order, which was passed on January 11, 1965, and since we are divided in opinion as to the decision to be given, on this point, this Criminal Application should be placed before one or more of the Judges of this Court to decide the following point:

Whether an order passed by the High Court in a Revision Application preferred against an order passed in appeal preferred to a Sessions Court under Section 476B of the Cr.P.C. is a final order within the meaning of Article 134(1)(c) of the Constitution of India?

A.R. Bakshi, J.

7. 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 Abhe-sing 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 someone 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 offence punishable under Sections 205, 467 and 468 - all read with Section 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 and thereupon the petitioner filed an appeal to 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 Sections 467 and 468 I.P.C. both read with Section 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 Section 205 read with Section 114 I.P.C. Against this order, Criminal Revision Application No. 378 of 1964 was filed in the High Court. That 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 Section 134(1)(c) of the Constitution of India that the case was a 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 Section 476, Criminal Procedure Code, and whose appeal is dismissed by the Sessions Judge under Section 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?

8. 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 nonetheless 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 and Ors. v. D.K. Cassim and Sons and Anr. and it was observed at page 60 that:

Lord Cave in delivering the judgment of the Board laid down, as the result of an examination of certain cases decided in the English Courts, that the test of finality is 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 Courts 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 root 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 Section 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 Q.B. 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 disposes 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 1 think it is not final, but interlocutory.

In the case of Seth Premchand Satramdas v. The State of Bihar 1950 S.C.R. 799, the question was whether an order passed dismissing an application under Section 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 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 Section 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 Jethanand and Sons v. State of Uttar Pradesh : [1961]3SCR754 wherein it was observed that:

In our view, the order remanding the cases under sec, 151 of the Civil Procedure Code is not a judgment, decree or final order within the meaning of Article 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 Article 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 right in dispute between the parties have to be determined, the order is not a final order within the meaning of Article 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 the rights of the parties.

9. 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 proceedings in case of certain offences affecting the administration of justice. Section 476, Cri. Pro. 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 Section 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, send 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 Section 476 and Section 476B provides for appeal by any person on whose application the Court has refused to make a complaint under Section 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 Section 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 Section 476, it would appear that before filing a complaint, the Court has to be satisfied that it is expedient in the interests of justice that an inquiry should be made. Such a preliminary inquiry is permissible under the provisions of Section 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 Section 476-B a provision is made that the person against whom 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 to 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 Section 195(1)(b) or (c) of the Criminal Procedure Code, The main ingredient of Section 476 of the Criminal Procedure Code thus is that the Court which decides to lodge the complaint most 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 Section 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 Section 205 read with Section 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 for an appeal against the order and it seems 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 provisions of Section 476 Cri. Pro. 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 proceeding to an end.

9.1 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 centred round the contention that it was not a criminal proceeding. In A.W. Meads v. Emperor

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 context which so indicates.

In the case of Anand v. Home Secretary and Minister of Defence of Royal Netherlands Government 1943 A.C. 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 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 the 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 a 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 Section 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 in 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 Section 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.

10. 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 Section 476 Criminal Procedure Code whose appeal has been dismissed by the Sessions Judge under Section 476 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 were satisfied. I would therefore answer the question accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //