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PETITIONER: MOHAN LAL MAGAN LAL THACKER

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT: 15/12/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. WANCHOO, K.N. (CJ) BACHAWAT, R.S. MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  733            1968 SCR  (2) 685  CITATOR INFO :  RF         1970 SC1168  (10)  R          1971 SC 100  (6)  R          1971 SC2337  (6)  R          1977 SC 403  (8)  RF         1977 SC2185  (8)  E&D        1978 SC  47  (15,16)  D          1980 SC 962  (32,40,58,60,61,62,70,100,101,

ACT: ConstitUtion  of  India,  Art.  134(1)(c)-Magistrate   after enquiry  under  s.  476  Criminal  Procedure  Code  ordering prosecution of offender-High Court dismissing  revision-High Court’s  order  whether ’final order’-Certificate  under  s. 134(1) (c) whether can be granted.

HEADNOTE: After  an  enquiry  under s. 476 of  the  Code  of  Criminal procedure the Judicial Magistrate, Baroda, ordered that  the appellant he prosecuted for offences under ss. 205, 467  and 468  read with s. 114 of the Indian Penal Code.   In  Appeal the  Additional Sessions Judge held that the said  complaint was  justified but only in respect of the offence  under  s. 205  read  with  s.  114.   The  High  Court  dismissed  the appellant’s revision pettion but granted a certificate under Art.  134(1)(c).   The  appellant came to  this  Court.   On behalf  of  the respondent State it was contended  that  the High  Court’s order dismissing the revision was not a  final order  as it, did not determine the complaint filed  by  the Magistrate  nor  did it decide the controversy  between  the parties viz., the State of Gujarat and the appellant.whether the appellant had committed the offence. Held : (Per Wanchoo C. J. and Shelat and Vaidialingam  JJ.)- (i)  A  judgment or order may be final for one  purpose  and interlocutory another or final as to part and  interlocutory as  to  part.The  meaning  of  the  two  words  ’final’  and ’interlocutory’  his, therefore to be considered  separately in  relation  to  the particular purpose  for  which  it  is required  However,  generally speaking a judgment  or  order which determines the principal matter in question is  termed

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final.  It may be final although it directs enquiries or  is made on an interlocutory application or reserves liberty  to apply. [687 H; 688 A-,B] Salaman v. Warner [1891] 1 Q.B. 734, Standard Discount  Co., v. La Grange, [1877] 3 C.P.D. 67, A. Great Eastern Rail  Co. [1879]  27 W.R,. 759, Shutrook v. Tufnell, [1882]  9  Q.B.D, 621,  Bozson v.Altrincham Urban Council, [1903] 1 K.B.  547, Abdul Rehman v. The King [1947] Cassim & Sons v. 60 IA.  76, S.Kuppusami  Rao v. King, [1497] F.C.R. 180,  Mohammad  Amin Brothers  Ltd.  v. Dominion  of India,  [1949]  F.C.R.  842. Sardar  Svedna Taher Saifuddin Saheb v. The State of  Bombay [1958]  S.C.R.  1007, Jethainand and Sons v.  The  State  of Uttar  Pradesh [1961] 3 S.C.R. 754, Premchand Satramadas  v. State of Bihar [1950] S.C.R. 799, State of Uttar Pradesh  v. Sujan  Singh, [1964] 7 S.C.R. and State of Orissa  v.  Madan Gopal [1952] S.C.R. 28, referred to. (ii) The  order  of  the  High Court  in  the  present  case disposed  of  the  controversy whether  the  filing  of  the complaint against the appellant was justified, The  finality of that order was not to be judged by co-relating that order with  the controversy in the controversy viz.,  whether  the appellant     had committed the offence charged against  him therein.  The fact 686 that   that  controversy  remained  alive  was   irrelevant. Consequently  the  order  passed by the High  Court  in  the revision  filed by the appellant was it final  order  within the meaning of Art. 134(1)(c). [693 D-H] Ramesh v. Patni, [1966] 3 S.C.R. 198, relied on. (iii) The High Court, before it certifies the case in  cases not  covered by clauses (a) and (b) of Art. 134(1)(c),  must be  satisfied that it involves some substantial question  of law  or  principle.  Only it case involving  something  more than  mere -appreciation of evidence is contemplated by  the Constitution  for  the  grant of a  certificate  under  Art. 134(1) (c) The question in the revision petition before  the High Court was whether the filing of a complaint against the appellant  was expedient in the interest of  justice.   This was a question of fact and therefore the grant of certificate was not justified. [694 B-F] Haripada Dey v. Slate of West Bengal, [1956] S.C.R. 639, and Babu State of Uttar Pradesh, [1965] 2 S.C.R. 77 relied on. Per Bachawat and Mitter, JJ. (dissenting) :-Whatever test is applied,in     order directing the filing of a complaint and deciding  that there is a prima facie case for enquiry  into an offence is not a final order.  It is merely a preliminary step  in  the prosecution and therefore  and,  interlocutory order.   As the order is not final, the High Court  was  not competent to grant a certificate under Art. 134(1)(c).  [695 B] S. Kuppuswamy Rao v. The King [1947] F.C.R. 180, relied on.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.105  of 1965. Appeal from the judgment and order dated January 11, 1965 of the Gujarat High Court in Criminal Revision Application  No. 378 of 1964. N.   N. Keswani, for the appellant. G.   L. Sanghi and S. P. Nayar, for the respondent. The Judgment of WANCHOO, C.J., SHELAT and VAIDIALINGAM,  JJ. was  delivered  by  SHELAT, J. BACHAWAT,  J.  on  behalf  of MITTER, J. and himself delivered a separate Opinion.

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Shelat, J. The appellant, a practising advocate, was engaged by Rama Shamal and Raiji Shamal two of the accused in Crimi- nal  Case  No.  26  of 1963 in the  court  of  the  Judicial Magistrate,  Baroda,  in respect of charges under  ss.  302, 436, 334 read with s. 149 of the Penal Code.  On January 12, 1963,  the appellant presented a bail application on  behalf of  the  said two accused.  The Magistrate granted  bail  on each  of  the two accused executing a personal bond  of  Rs. 1,500 with surety for the like amount.  On January 25, 1963, bail  bonds  were  furnished by  a  person  calling  himself Udesing  Abhesing.  The appellant identified that person  as Udesing  Abhesing  and as personally known to him.   On  the strength  of his identification the Magistrate accepted  the bonds and released the two accused on bail.  Thereafter, one of 687 them absented himself from the Court on three occasions  and the Magistrate issued a notice on the said surety.  On March 11, 1963, the real Udesing Abhesing appeared and denied that he  had  executed the said bonds or stood  as  surety.   The Magistrate  issued  an informal notice to the  appellant  to explain  why  action  should not be taken  against  him  for identifying a person who had falsely impersonated as Udesing Abhesing.   The  appellant gave his reply.   The  Magistrate recorded statements of the real Udesing Abhesing and of  one Chiman Shamal.  He did so to satisfy himself that there  was substance in the allegation of the said Udesing that be  was not  the person who had stood as surety. On July  19,  1963, the  Magistrate issued a show cause notice to the  appellant under  s. 476, Cr.  P.C. and the appellant filed his  reply. After an enquiry under s. 476, the Magistrate ordered filing of a complaint against the appellant in respect of  offences under  ss.  205, 467 and 468 read with s. 114 of  the  Penal Code.   In an appeal filed by the appellant, the  Additional Sessions  Judge, held that the said complaint was  justified but only in respect of the offence under s. 205 read with s. 114.   In a revision by the appellant a single Judge of  the High Court of Gujarat passed the following order:               "This  is a matter in which this Court  should               never  interfere  in revision.   The  revision               application is, therefore, dismissed". The High Court gave certificate under Art. 134(1)(c) of  the Constitution and that is how this appeal has come up  before us. Mr. Sanghi for the respondent raised the preliminary conten- tion that the High Court’s order dismissing the revision was not  a  final order as it did not  determine  the  complaint filed  by the Magistrate nor did it decide  the  controversy between the parties therein, viz., the State of Gujarat  and the appellant, whether the appellant had committed the  said offence.   That  controversy  being still a  live  one,  the order,  according  to him, was not  final,  the  certificate granted  by the High Court was incompetent and  consequently the appeal is not maintainable.               Article 134 (1) (c) reads as follows : -               "An appeal shall lie to the Supreme Court from               any  judgment,  final order of sentence  in  a               criminal  proceeding of a High Court  ....  If               the  High Court certifies that the case  is  a               fit one for appeal to the Supreme Court". The  question as to whether a judgment or an order is  final or not has been the subject matter of a number of decisions; yet no single general test for finality has so far been laid down.   The reason probably is that a judgment or order  may be final for one

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688 purpose  and interlocutory for another or final as  to  part and interlocutory as to part.  The meaning of the two  words "final"   and   .’interlocutory"  has,  therefore,   to   be considered separately in relation to the particular  purpose for  which it is required.  However, generally  speaking.  a judgment  or order which determines the principal matter  in question  is  termed  final.  It may be  final  although  it directs enquiries or is made on an interlocutory application or reserves liberty to apply.(1) In some of the English  de- cisions  where this question arose, one or the other of  the following four tests was applied.               1.    Was  the order made upon an  application               such that a decision in favour of either party               would determine the main dispute ?               2.    Was  it  made upon an  application  upon               which the main dispute could have been decided               ?               3.    Does  the  order as made  determine  the               dispute ?               4.    If  the order in question  is  reversed,               would the action have to go on ? The first test was applied in Salaman v. Warner(2) and Stan- dard Discount Co. v. La Grange(3).  But the reasoning in the latter  case was disapproved in A.G. v. Great  Eastern  Rail Co.(4).  In Shutrook v. Tufnell(5) the order did not  decide the  matter  in the litigation but referred it back  to  the arbitrator, though on the application on which it was  made, a  final determination might have been made.  The order  was held to be final.  This was approved in Bozson v. Altrincham Urban  Council( 6) by Lord Halsbury who declined  to  follow the  dictum  in  Salaman v. Warner(2)  and  Lord  Alverstone stated the test as follows :-               "Does  the judgment or order as  made  finally               dispose of the rights of the parties? This test, however, does not seem to have been applied in A. G. v. Great Eastern Urban Council(6) where an order made  on an  application  for summary judgment under R.S.C.  Ord.  14 refusing unconditional leave to defend was held not to be an interlocutory order for purposes of appeal though made on an interlocutory  application.  An interlocutory order,  though not  conclusive of the main dispute may be conclusive as  to the sub-ordinate matter with which it deals. (1)  Halsbury’S  Laws of England ( 3d Etc.) Vol.  22,  742’- 743. (2)  [1891] 1 Q.B. 734. (3) [1877] C.P.D. 67. (4) [1879]  27 W. R. 759. (5) [1882] 9 Q.B.D. 621. (6)  [1903] 1 K.B. 547. 689 There  are  also a number of decisions on  the  question  of finality  by the Privy Council and the Courts in India.   In Abdul Rehman v. D. K. Cassim & Sons(1) the test applied  was that  "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".  And the fact that the  impugned order  decides  an important and even a vital  issue  is  by itself not material. if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit  is  still left alive and has yet to be  tried  in  the ordinary way, no finality could attach to the order. in this case the order was clearly an order of remand which kept the entire  case  undecided.   This  test  was  adopted  in   S. Kuppuswami Rao v. The King(2) where the court also held that the  words  ’judgment’  and ’order’ have  the  same  meaning

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whether the proceeding is a civil or a criminal  proceeding. In  Mohammad Amin Brothers Ltd. v. Dominion of India(3)  the Federal Court following its earlier decision adopted against the  test,  viz.,  whether the  judgment  or  order  finally disposed  of  the rights of the parties.  In  Sardar  Syedna Taher Saifuddin Saheb.v. The State of Bombay(4), this  Court applying,  the test held that the appeal before it  was  not maintainable as the impugned order disposed of a preliminary issue  regarding  the validity of the Bombay  Prevention  of Excommunication  Act, 1949. but (lid not decide the rest  of the issues in the suit.  In Jethanand and Sony v. The  State of  Uttar Pradesh(5) the order on. which  certificate  under Art.  133  (1)  (c) was granted was  clearly  an  order  of’ remind.  Indeed, the High Court gave leave to the parties to amend  the pleadings and directed the trial court to hold  a de  novo  trial  on the amended  pleadings  and  the  issues arising  therefrom and the order was said to be not a  final order  since the dispute between the parties still  remained to be tried by the trial Court. But  these were cases where the impugned orders were  passed in appeals or- revisions and. since an appeal or a  revision is continuation of the original suit or- proceeding the test applied was whether the order disposed of the original  suit or  proceeding. 11’ it did not, and the suit  or  proceeding was  a live one, vet to be tried. the order was held not  to be  final.   Different tests have been applied.  however  to orders  made in proceedings independent of the  original  or the  main proceedings.  Thus in Premchand Sastramdasv.   The State  of Bihar(6) an order of the High Court dismissing  an application  to direct the Board of Revenue to state a  case to  the High Court under the Bihar Sales-tax Act, 1944,  was held (1)  6, I.A. 76. (3)  [1949] F.C.R. 842. (5)  [1961] 3 S.C.R. 754. (2)  [1947] F.C.R. 180. (4)  [1958] S.C.R. 1007. (6)  [1950] S.C.R. 799. 690 not to be a final order on two grounds : (1) that the  order was  made  under a jurisdiction which was  consultative  and standing by itself, it did not bind or affect the rights  of the parties though the ultimate order which would be  passed by the Board would be based on the opinion expressed by  the High  Court, -and (2) that on a construction of Art.  31  of the  Letters  Patent of the High Court of  Patna  an  appeal would  lie  to  the Privy Council only in  cases  of  orders passed  by  the  High Court in  its  appellate  or  original jurisdiction and not the advisory jurisdiction conferred  by the  Act.  It is clear that though the proceeding  in  which the  High Court passed the impugned order may be said to  be an independent proceeding, one of the tests applied was that it  did  not  determine the rights of  the  parties  as  the controversy  as  to  the liability  of  the  assessee  still remained  to  be determined by the Board.  The  decision  in State  of  Uttar  Pradesh v. Sujan Singh(1)  does  not  help because  the  proceeding  in which the  impugned  order  was passed  was assumed to be an interlocutory one arising  from and during the course of the trial itself.  The question was whether  the order rejecting the State’s claim of  privilege from  producing a certain document was a final order  within the  meaning of Art. 134(1) (c).  The criminal  proceedings, said the Court, were the proceedings against the respondents for an offence under s. 6(1) of the Prevention of Corruption Act,  1947.   They  were still pending  before  the  Special

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Judge.   In the course of those proceedings the  respondents applied  for  the production of the document  by  the  Union Government  and that was allowed by the Court.   The  order, therefore  ,  was an interlocutory order  pending  the  said proceedings.  It did not purport to decide the rights of the parties i.e. the State of Uttar Pradesh and the respondents, the  accused.  It only enabled the accused to have the  said document proved and exhibited in the case and therefore  was a  procedural  step for adducing evidence.  The  court  also said that assuming that the order decided some right of  the Union Government, that Government was neither a party to the criminal  proceedings  nor a party either  before  the  High Court  or  this  Court.  This decision was  clearly  on  the footing that the respondents’ application for production  of the  document in which the Union Government, not a party  to the trial, claimed privilege was an interlocutory and not an independent  proceeding.  The question is what would be  the position   if  (a)  the  application  was   an   independent proceeding,  and (b) if it affected the right of  the  Union Government. The decision in Ramesh v. Patni(2) would seem to throw light on  these  questions.  There the Claims  Officer  under  the Madhya Pradesh Abolition of Proprietory Rights Act, 1950 (1)  [1964]7S.C.R.734. (2) [1966] 3 S.C.R. 198. 691 held in an application by the appellants that a debt due  by them  to  the  respondents was a  secured  debt  though  the respondents   had   obtained  a   decree   therefore.    He, accordingly,  called  upon  the respondents  to  file  their statement of claim as required by the Act.  The  respondents filed the statement, but the officer held that it was out of time  and discharged the debt.  In appeal  the  Commissioner held  that  though the Claims Officer had  jurisdiction,  he could  not  discharge the debt as action under s.  22(1)  of the, Act had not been taken.  The appellants thereupon filed Art.  226  petition alleging that the  Commissioner  had  no jurisdiction to entertain or try the appeal.  The High Court dismissed  the petition summarily.  The contention was  that the High Court’s order was not a final order be-cause it did not  decide the controversy between the parties and did  not of its own force affect the rights of the parties or put  an end  to the controversy.  This court observed: (1) that  the word  ’proceeding’  in Art. 133 was a word of  a  very  wide import, (2) that the contention that the order was not final because it did not conclude the dispute between the  parties would have had force if it was passed in the exercise of the appellate  or revisional jurisdiction of the High Court,  as an  order  of  the  High Court if passed  in  an  appeal  or revision  would not be final if the suit or proceeding  from which  there was such an appeal or revision  remained  still alive after the High Court’s order, (3) but a petition under Art.  226  was  a proceeding  independent  of  the  original controversy between the parties; the question therein  would be whether a proceeding before a Tribunal or an authority or a court should be quashed on the ground of want of jurisdic- tion  or  on  other well recognised  grounds  and  that  the decision   in  such  a  petition,  whether  interfering   or declining  to interfere, was a final decision so far as  the petition  was  concerned and the finality of such  an  order could  not  be judged by co-relating it  with  the  original controversy  between  the  parties.   The  court,   however, observed that all such orders would not always be final  and that  in each case it would have to be ascertained what  had the High Court decided and what was the effect of the order.

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If, for instance, the jurisdiction of the inferior  tribunal was  challenged and the High Court either upheld it  or  did not, its order would be final. The  effect of this decision is that a writ  petition  under Art.  226  is  a  proceeding  independent  of  the  original proceedings  between  the parties; that the finality  of  an order passed in such an independent proceeding is not to  be judged  from the fact that the original proceedings are  not disposed of by it but are still pending determination;  that the  test  as to whether the impugned order  determines  the rights  of  the  parties  in  controversy  in  the  original proceedings  instituted by one of them would not apply to  a proceeding  independent  of such original  proceedings;  and that if the L2 Sup CI/68-14 692 order   finally  determines  the  controversy  in   such   a proceeding and that proceeding is disposed of, the order  is final  in so far as that controversy is concerned.  Even  an order  ex-facie interlocutory in character has been held  to be final if it finally disposed of the proceeding though the main controversy between the parties remained undisposed of. An  illustration of such a case is to be found in the  State of Orissa v. Madan Gopal(1).  The dispute there was  whether the State Government had the power to annul or cancel leases granted  by the ex-proprietor whose territory had under  the agreement  of  merger merged in the Union Territory  and  by reason  of  s. 4 of the Extra Provincial  Jurisdiction  Act, 1949   was  administered  by  the  State  of  Orissa.    The respondents gave notice to the State under s. 80 of the Code of   Civil  Procedure  but  apprehensive  that  before   the prescribed  period  expired,  the State  might  annul  their leases filed a writ petition.  The High Court did not decide the   dispute  but  granted  a  mandamus   restraining   the Government from taking action until the proposed suits  were filed.  in an appeal against that order the State  contended that the order was not final as it was for an interim relief and  the dispute between the parties remained to  be  deter- mined  in  the  proposed suits.  Though the  order  had  not determined  the rights of the parties, this Court  negatived the contention and held that the order was final as ’in view of  the  fact  that with these  orders  the  petitions  were disposed of finally and nothing further remained to be  done in respect of the petitions". Facts similar to the facts in the present case were in Durga Prasad  v. State of U.P.(2). A complaint was filed  charging the applicant with offences, inter alia under s. 193 of  the Penal  Code.   ’]"he applicant filed an  appeal  before  the Sessions  Judge  under  s.  476B of  the  Code  of  Criminal Procedure  against  the  order filing  the  complaint.   The Sessions  Judge held that the order was bad as s. 476  under which the complaint was filed stood impliedly repealed by s. 479A  and  set aside the order filing the complaint.   In  a revision  against that order, the High Court held  that  the Sessions  Judge  was not right and setting aside  his  order remanded the matter to him to decide it on merits.  The High Court on an application for certificate held that its  order was  not final as the real controversy between  the  parties i.e. the State and the applicant, was whether the  complaint was  justified.   Since that question was  remitted  to  the Sessions  Judge for determination on merits, the  order  was only  one  of  remand and did not  determine  the  aforesaid controversy.   This  decision proceeds on the  footing  that there were two independent controversies between the parties involved  in  the two proceedings.  One  was  the  complaint

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which charged the applicant with the offence under s. 193 of the Penal Code and the other was the appeal which he (1) [1952] S.C.R. 28. (2) A.I.R. 1960 All. 728. 69 3 filed before the Sessions Judge alleging that the  complaint was  not justified and that it could not be filed  under  s. 476  as it was impliedly repealed by s. 479A of the Code  of Criminal  Procedure.   The order was held, not to  be  final because  it did not determine the latter  controversy  viz., whether  the complaint was justified and not on  the  ground that the controversy in the complaint that the appellant had committed the offence with which he was charged, had yet  to be  tried by the court.  It follows that according  to  the, High Court’s reasoning its order would have been final,  if, instead  of remanding the matter to the Sessions  Judge  the High  Court  had held either that it was  justified  or  not justified.   This decision is in conformity with  the  ratio laid down in Ramesh v. Patni(1) and State of Orissa v. Madan Gopal(l). The  aforesaid discussion leads to the conclusion that  when the  Magistrate ordered the filing of the complaint  against the appelant, the parties to that controversy were the State and  the  applicant  and the controversy  between  them  was whether the appellant had committed offence charged  against him  in that complaint.  The appeal filed by  the  appellant before  the Additional Sessions Judge was against the  order filing  the complaint, the controversy therein raised  being whether the Magistrate was, justified in filing it, that  is to say, whether it was expedient in the interest of  justice and  for  the  purpose  of eradicating  the  evil  of  false evidence  in  a judicial proceeding before the  Court.   The controversies  in  the two proceedings  were  thus  distinct though  the  parties  were the same.   When  the  Additional Sessions  Judge  held that the complaint  was  justified  in respect of the offence under s. 205 read with s. 114 and was not justified in respect of the other offences his  judgment in the absence of a revision by the State against it finally disposed  of  that part of the controversy, i.e.,  that  the complaint in respect of offences under ss. 467 and 468  read with s. 114 was not justified.  When the appellant filed re- vision in respect of the complaint for the remaining offence under  s. 205 read with s. 114 the Single Judge of the  High Court  dismissed  that  revision.  His  order  of  dismissal disposed  of  that controversy between the parties  and  the proceeding  regarding  that  question  as  to  whether   the complaint  in that regard was justified or not  was  finally decided.  As observed in Ramesh v. Patni(1) the finality  of that  order  was not to be judged by corelating  that  order with  the  controversy in the complaint, viz.,  whether  the appellant  had  committed the offence  charged  against  him therein.   The  fact that that  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  Art. 134(1) (c). (1) [1966] 3 S.C.R. 198. (2) [1952] S.C.R 28. 694 Even so, the next question is whether this was a case  where the  High  Court  could have granted  the  certificate.   In Haripada  Dey v. The State of West Bengal, (1) it  was  held that  the  High  Court  had  no  jurisdiction  to  grant   a certificate under Art. 1 3 4 (1 ) (c) on a mere question  of fact.  In Bab v. State of Uttar Pradesh, ( 2 ) it was  again

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observed  that  the Constitution does  not  confer  ordinary criminal jurisdiction on this Court except in cases  covered by clauses (a) and (b) of Art. 134 which provide for appeals as of right.  The High Court before it certifies the case in cases not covered by clauses (a) and (b) of Art. 134 must be satisfied that it involves some substantial question of  law or  principle.   Only a case involving something  more  than mere  appreciation  of  evidence  is  contemplated  by   the Constitution for the grant of a certificate under Art. 134(l ) (c) which alone applies in this case.  The question in the revision  application before the High Court was whether  the Magistrate  was  right  in  his  conclusion  that   offences referred  to  in  S.  1 95 (q) (b) or (c)  of  the  Code  of Criminal Procedure appeared to have been committed in or  in relation  to  a  proceeding in his court  and  that  it  was expedient  in the interest of justice to file  a  complaint. Obviously,  this  is  a  question of  fact  and  involve  no substantial question of law or principle.  It seems that the certificate was issued because it appeared as if the  single Judge  in  the language in which he passed his  order  meant that the High Court as a matter of law would never  exercise its revisional jurisdiction in such cases.  The order,  how- ever, cannot mean that the High Court cannot entertain.  and decide  revision  applications in respect of  orders  passed tinder  s. 476 of the Code of Criminal Procedure.  What  the single  Judge presumably meant was that the  question  being one  of  fact  only.  the High  Court  would  not  interfere particularly where there is a concurrent finding both of the Magistrate  and the Sessions Judge in appeal.  The  question being  one  of  fact only and  there  being  no  substantial question  of  law  or  principle, the  High  Court  was  not competent to certify the case under Art. 134 (1) (c). In this view it is not necessary to go into the  contentions on merits raised by the appellant’s counsel.  The appeal  is not maintainable and is dismissed. Bhachawat,  J. The Judicial Magistrate, First  Class,  Third ,Court  Baroda made an enquiry under S. 476 of the  Code  of Criminal  Procedure and directed the.filing of a  complaint’ against the appellant in respect of offences under ss.  205, 467  and  468  read with S. 114 of  the  Indian  Penal  Code alleged -to have been committed by the appellant in relation to  proceedings  in his Court.  He found that  there  was  a prima facie case for enquiry into the (1)[1956]1 S.C. R. 639. (2) [1965] 2 S.C.R. 771. 695 offences  and it was expedient in the interests  of  justice that  such  an enquiry should be made.  In an  appeal  filed after the complaint was made, the Additional Sessions Judge, while  setting  aside the order in respect of  the  offences punishable under ss. 467 and 468 read with s. 114, confirmed the order directing the filing of a complaint with regard to the  offence  punishable under s. 205 read with s.  114.   A revision application filed by the appellant was dismissed by the  High  Court.  In view of s. 195(1)(b) of  the  Code  of Criminal Procedure, a prosecution for an offence  punishable under s. 205 read with S. 114 alleged to have been committed in relation to a proceeding in any Court cannot be  launched without  a  complaint  in  writing of such  Court  or  of  a superior  Court.  The effect of the order of the High  Court confirming  the direction for the filing of a  complaint  in respect of the offence is that the -bar of s. 195 ( 1 )  (b) is  removed, and the trial of the offence can  now  proceed. The  appellant  is  still  on  trial.   The  Court  has  not pronounced on his guilt or innocence, He is being tried  for

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the offence by a competent Court and an order of  conviction or acquittal is yet to follow.  The order of the High  Court involves  no determination of the merits of the case  or  of the  guilt  or innocence of the  appellant.   From  whatever point  of  view  the  matter is  looked  at,  the  order  is interlocutory. In  a  civil  proceeding, an order is final  if  it  finally decides the rights of the parties, see Ramchand Manjilal  v. Goverdhandas  Vishindas  Ratanchand(l).   If  it  does   not finally  decide  the  rights of the  parties  the  order  is interlocutory,   though  it  conclusively  determines   some subordinate  matter and disposes of the proceeding in  which the subordinate matter is in controversy.  For this  reason, even  an order setting aside an award is interlocutory,  fee Croasdell  and Cammell Laird & Co., Limited v. In re(2).   A similar  test  has been applied for determining  whether  an order ill a criminal proceeding is final, see S.  Kuppuswami Rao v. The King(:’).  For the purposes of this appeal, we do not  propose to examine all the decisions cited at  the  bar and to formulate a fresh test on the subject.  Whatever test is applied, an order directing the filing of a complaint and deciding  that  there is a prima facie case for  an  enquiry into  an  offence  is not a final order.   It  is  merely  a preliminary  step  in  the  prosecution  and  therefore   an interlocutory  order.  As the order is not final,  the  High Court  was not competent to give a certificate under Art.  1 34  (1)  (c)  of  the  Constitution.   The  appeal  is   not maintainable and is dismissed. G.C. (1)  (1920) L.R. 47 I.A. 124. (2)  [1936] 2 K.B. 569. (3)  [1947] F.C.R. 180. Appeal dismissed. 696