1. The petitioner was arrested by the Calcutta Police in connection with an alleged offence under Section 11 of the West Bengal Security Act. When he was produced before the Additional Chief Presidency Magistrate, he was released on bail of Rs. 2,000/- (Rupees two thousand) only. On a newspaper report of this proceeding a Division Bench of this Court taking criminal business issued a Rule upon the Chief Presidency Magistrate as well as upon the petitioner to show cause why the order granting bail should not he cancelled and after hearing the cause shown the Division Bench made the Rule absolute and cancelled the order of bail. The petitioner now wants to refer an appeal to the Supreme Court against the aforesaid order of the Division Bench dated July 22, 1960 and he has asked for a Certificate under Article 134(1)(c) of the Constitution.
2. Mr. Banerjee appearing in support of the application states before us that the point which the petitioner proposes to raise before the Supreme Court is this: that although this Court has power under Section 439 of the Code of Criminal Procedure to rescind or modify any order passed by a subordinate criminal Court suo motu, the facts of the present case are not such as to justify the exercise of that extraordinary power.
3. For the reasons which I propose to give it is not necessary for us to express any opinion on the merits of the point which the petitioner proposes to raise before the Supreme Court. In our opinion, no Certificate can be granted by this Court under Article 134(1)(c) of the Constitution against the order passed by the Division Bench because the order sought to be appealed from is not a final order within the meaning of that Article.
4. An order granting or refusing bail cannot be said to be a final order for two reasons - first, because such an order is not final in fact. It can be rescinded or modified by the same Court on a subsequent action; secondly, because this order is not also a final order in law. The words 'judgment' and 'final order' occurring in Article 2(s) of the Constitution also occurred in Section 205 of the Government of India Act, 1935, and they also occur in Section 109 of the Code of Civil Procedure and Article 133 of the Constitution. They were interpreted by the Privy Council under Section 109 of the Code of Civil Procedure and by the Federal Court of our country under Section 205 of the Government of India Act, 1935. According to all the authorities the test of finality is that in order to be final the order should finally terminate the lis or the proceedings or, in other words, it must be on a point which determined either way, would bring the proceeding to an end. It has been uniformly held by all the authorities that an interlocutory order is neither a judgment nor a final order within the meaning of Article 134 of the Constitution. A summary of all the earlier authorities on the point will be found in two decisions of this Court, namely, West Jamuria Coal Co. v. Bholanath Roy, : AIR1954Cal424 and also Mukunda Das Nandy v. Bidhan Chandra Roy, : AIR1960Cal77 to both of which I was a party. Judged by this test an order granting or refusing bail cannot be a final order; it is merely an interlocutory order against which this Court is not competent to grant a Certificate under Article 134(1)(c) of the Constitution.
5. For these reasons the application for a Certificate under Article 134(1)(c) of the Constitution filed by the petitioner must be dismissed.
6. The petitioner was granted interim bail by an order of this Court dated the 22nd of July, 1960. He must surrender to his bail-bond forthwith.
7. Let the certified copy of the order of the Division Bench be returned to the petitioner and let a copy of the order passed by us to-day be also supplied to the petitioner in the course of the day on his supplying the necessary stamps and folios and the requisite fees for an urgent certified copy.
8. I agree.