MOHAN LAL MAGAN LAL THACKER versus STATE OF GUJARAT

. MOHAN LAL MAGAN LAL THACKl<:R

STATE OF GUJARAT

D.ecember 15, 1967

[K. N. WANCHOO, C.J., R. S. BACHAWAT, J. M. SHELAT, G. K. MITTER AND C. A. VA!D!ALINGAM, JJ.]

Con.Hit11tion of India, Art, 134(1) (c)-Magistrare 11ftcr enquiry under s. 476 Cri111i11al Procedur.e Code ordering prosec11tio11 nf ofiencl<'r-H;:;h Court disn1issin1: revision-High Courr's order 11·hrther 'finriJ order'~Cmificate under s. 134(1) (c) •l'iiether can he granted.

. After an enquiry under s. 476 of the C.odc of Critninal Procedure the Judicial Magi•:rate, Baroda, ordered that the appellant he prosecuted for offences under ss. 205, 467 and 468 read with s. 114 of the lllLii\on Penal Cod·o. Jn appeal the Additional Sessions Judge held that the said complaint \Vas justified hut only in respect of the offcnc·~ under s. '205 read \Vith s. 114. 'fhe High Court dismissed the appcllai'1:'s revision pct~ tion but ornnted certificate under Art. 134(l)(c). The appellant came tt1 d1is Court. On b"half of the respondent S-:at"' !t \Vas contended that the High Court's order d\missing the revision was no_t· :final order Js it <lid not Jetermin;: the complaint filed hy the t"'fagi~i:rate. nor di.d it dccid~ the controversy hetween the parties. viz •. the St~1te of GuJarat an<l the app·;:ll::int. \vhcthcr the appellant had committed th(.! offence.

HELD: (Pn Wanchoo C. J. and Shelat and Vai<lialingam JJ.)-(i) judgment or order may be final for one purpose and intcrhJcutory .for another or final as to part and interlocutory as to part. The m~a:ling of the two words 'final' and 'interloi:u1~ory' has, therefore to' he c:Jnsit!crcli separately in relation tO the particular purpose for 'vhich it fo required. However, generally speaking judgment or order \vhich determines the principal matter in question is i!ermed fina1. It may he final although it directs enquiries or is made on an interJocutory rippticat ion or reserve~ liberty to apply, (687 H; 688 A-BJ

Salam;m v. Warner, (1891] 1 Q.B. 734, Standard Discount Co .. v. La Grcnge, [18771 3 C.P.D. 67. A.G. v. Great Emtern Rail Co. (1879] 27 W.R. 759, Shutrook v. T11fnel/, [18821 9 Q.B.D. 621. Bozsnn v. Altrincham Urban Cou11ci/. [1903] 1 K.B. 547. Ahdul Reh111011 v. D. K. Cassi111 & Sons. 60 I.A. 76, S. Kuppuswa1ni Rao· v. Tlrr Kin(?, [19471 F.C.R. 180, Mohan1111ad Amin Brothers Ltd. v. Don1inio11 Of India, [19491 P.C.R. 84~. Sardar Svedna Taher Saifuddin Si1'1eh v. The State of B()Jn-bay [1958) S.C.R. 1007, lethanand.and Sons v. The Stale of Uttar Prrrd,!sh. [1961) 3 S.C.R. 754, Premchand Sarramadas v. State o.1 Bi/iar· [19501 S.C.R. 799. State of Uttar Prmle.vh v. Sujan Sin11h. [1964] 7 S.C.R. and State o.f Orissa v. Madan Gopal [1952] S.C.R. 28, referred to.

(ii) Th_e order; of the High Court ;n the present case Llisp·~)::;ed of the controversy 'vhether the filing of the complaint aisainst the appellant was jt.istified. The finali.:y of' thfit order Was not to he iud!!c<l by co-rclatinf! th:i't .order "vith the controversy in· the complaint viz._ \vhether the appcl· lant had· committed the offence charged against hin1 1!hcrcin. The fact

that tbat controversy remained aJivc was irrelevant. Consequently the order passed by the High Court in che revision filed by the appellant was finul order within the meaning of A~I. 134(l)(c). (693 D-HJ

Consequently the

Ramesh v. Patni, (1966] 3 S.C.R. 198, relied on.

(iii) The High C.Ourt, before it certifies the case in cases not covered hy clauses (a) and (b) of Art. !34(l)(c), must he satisfied thal it in-volves some substantial question of law or principle. Only case in-volving something more than mere ~ppreciation of evidence is contem-plated by the Constitution for the grant of certificate under Art. 134( I) ( c). The question in the revision petition before the High Court ,.._, whether the filing of complaint against the appellao: wa> expedient in the intl!Jt~t of juslice. This was question of faci and thercfort- the J;nml ,>f ccrtificato was not justified. [694 8-FJl/aripada Dey v. Stare of West Bengal, (1956] S.C.R. 639, and Babu " .\•n•e of lfllar Pradesh, (19651 2 S.C.R. '17', rolicil on.

Per Bacha\vat and Mitter, JJ. (dissenting) :-Wh<i.tPver t~"l is applied an order directing the filing of complaint and deciding that t.bcrci i9 pri111a facje case for enquiry inlo an offence is nol final order. ]1 is merely preliminary step in lhe prosecution an<l therefore an interlocutory orJcr. As th~ or<lcr is not final, the High Court was not competent to ~~nt certificate under Art. 134(l)(c). (695 BJ

S. KuppusH"ami Rao v. The King (1947] F.C.R. 180, relied on.

,CRIMISAL 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. :in of 1964.

N. N. Keswani, for the appellant.

G. L. Sanghi and S. l'. Nayar, for the re~pondent.

The Judgment of WANCllOO, C.J., SHELAT and VAJDIALIN-GAM. II. was delivered by SHELAT, I. BACHAWAT, J. on behalf of MITTER, J. and himself delivered separate Opinion.

Shela!, J. The appellant, practising advocate, wa5 engaged hy 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 ""ith s. 149 of the Penal Code. On January 12. 1963, the appellant presented bail application on behalf of the said two accused. The Magistrate granted bail on each of the two accused execut-ing personal bond of Rs. 1,500 with surety for the like amount. On January 25, 1963, bail bonds were furnished by person calling himself Udesing Abhesing. The appellant identified that person as Udcsing Abhesing and as personally known to him. On the strength of· his identification the Magisrrate accepted the bonds and released the two accused on bail. Thereafter, one of

them absented himself from the Court on three occasions and the Magistrate issued 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 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 he was not the person who had stood as surety. On July 19, 1963, the Magistrate issued show cause notice to the appellant under"· 476, Cr. P.C. and the appellant filed his reply. After an enquiry under s. 4 76, the Magistrate ordered filing of 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 revision by the appel-D lant single Judge of the High Court of Gujarat passed the fol- . lowing order :

"This is matter in which this Court should never interfere in revision. The revision application is, there-fore, 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 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 committe>t the said offence. That controversy be-ing still live one, the order, according to him, was not final, the certificate granted by the High Court was incompetent and consequently the ~peal 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 criminal proceed-ing of High Court .... If the High Court certifies that tlie case is fit one for appeal to the Supreme Court".

The question as to whether judgiµent or an order is final or not has been the subject matter of number of decisions; yet no single general test for finality has so far been laid down. The reason probably is that judgment or order may be final for one

purpose and interlocutory for another or final as to part and in-terlocutory as to part. The meaning of the two words "final" and "interlocutory" has, therefore, to be considered separately in re-lation to the particular purpose for which it is required. How-ever, generally speaking, judgment or order which determines the principal matter in question is termed final. It may be final although it directs en(l.\lirics or is made on an in<erlocutory appli-cation or reserves liberty to apply. ([1 ]) In some of the English de-cisions where this question arose. one or the other of the follow-ing four tests was applied.

I. Was the order made upon an application such that decision in favour of either party would determine the main dispute ?

2. Was 1t made upon an application upon which the niarn dispute could have been decided [0 ]

3. Does the order as made determine the dispute [0 ]

4. If the order in question is reversed, would the action have to go on ?

The first test was applied in Sa/11111011 v. Warner(') and Sl<'ll-dard /JiJco11111 Co. v. La Gra11gc('). But the reasoning in the latter case was disapproved in A.G. v. Great Eastern Rail Co. ( [1]). In Shurrook '" Tufnell(') 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. final detennination might have been made. The order was held to be final. TI1is was ap-proved in Bo;:,wn v. A/trincham Urban Council(') by Lord Hal.s-bury who declined to follow the dictum in Salama11 v. Womer(') ;md Lord Alverstone stated the test as follows :-

"Docs the judgment or order as made finally dis-

pose of the rights of the parties[0 ]

This test, however. do:s not seem to have been applied in A. G. '" Great Eastern Urba11 Co1111cil(') where an order made on an "l'Plication for <ummary judgment under R.S.C. Ord. 14 refus-•:l!! unconditional leave to defend was held not :0 he an inter-locutory order for purposes of appeal though made on an inter-locutory application. An interlocutory order. though not conclu-sive of the main dispute may be conclusiw as lo the surbordinate matter with which it deals.

11) J(:il.;;burv·:-; L:iw<: c,f England ( J_·d Fd) \'nl. 2~. 7·1~-7.iJ ,,l 1189111on.134 'm 11s:71Jc.r.n.67.

(4) [1879[ ,7 W.R. 759. (5) [188,19 Q.B.O. ~'I

(6) [191)J: K.B. 547.

There are also number of decisions on the question of fina-lity by the Privy Council and the Courts in India .. In Abdul. Rehman v. D. K. ·Cassim ~ Sons(') the test applied was that "the finality must be finality in relation to the suit. If after the order the suit is still 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 vital issue is by itself not material'. If the decision on an issue puts an end to the suit, the order is undoubtedly 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. Tn 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(') where the court also held that the words 'judgment' and 'order' have the same meaning . whether the proceeding is civil or criminal proceeding. In Mohammad Amin Brothers Ltd. v. Do-minion 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. Tn Sardar Syedna Taher Saifuddin Saheb v. Tiu! State of Bombay('), this Court applying the same test held that the appeai before it was not maintainable as the impugned order disposed of preliminary issue regarding the validity of the Bombay Prevention of Excommunication Act, 1949, but did not d~cide the rest of the issues in the suit. In Jethanand and Sons v. The State of Uttar Pradesh(") the order on which certificate under Art. 133 (l) ( c) was granted was clear-ly an order of remand. Indeed, the High Court gave leave to· the parties to amend the pleadings and directed the trial court to hold de nova trial on the amended pleadings and the issues arising therefrom and the order was said to be not 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 revision is con-tinuation of the original suit or proceeding the test applied was whether the order disposed of the original fait or proceeding. If it did not, and the suit or proceeding was . live one, yet 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 Satram-das v. The State of Bihar([6 ]) an order of the High Court dismis-sing 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

(2) [1947] F.C.R. 180

(1) 61 I.A. 76.

(4) [19581 S.C.R. 1007.

not to be final order on two grounds : (I) that the order was made under jurisdiction which was consultative and standing by itself, jt 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 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 juri::>dict1on and not the advisory jurisdiction confer-red 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 detenninc 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 Ut1ar Pradesh v. Sujan Singh(') docs not help because the proceeding in which the impugned order was passed was assumed to be an in' ~rlocutory 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 certain document was final order within the meaning of Art. 134 (I) ( c). The criminal proceedings, said the Court, were the proceedings against the respondent5 for an offence under s. 6 ( 1 ) of the Prevention of Corruption Act, 1947. They were still pending before the Special Judge. In the course of those proceedings the respondents applied for the pro-duction of the document by the Union Government and that wa5 allowed by the Court. The order, therefore, was an interlocutory order pending the said proceedings. It did not purport to decide the right5 of the parties i.e. the State of Uttar Pradesh and the respondents, the accused. It only enabled the accused to hav~ the said document proved ~nd e.xhibited in the case and there-fore was procedural step for adducin~ evidence. '11ie court also said that assurning that the order decided some right of the Union Government. that Government was neither party to the criminal proceedings nor 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 party to the trial, claimed privi-lege 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(') would seem to throw light on these questions. There the Claims Officer under the Madhya Pradesh Abolition of Proprietory Rights Act. 1950

held in an application by the appellants that debt due by them. to the respondents was secured debt though th.e respondents had qbtained decree therefor. He, accordingly, called upon the res~ pondents to file their statement of claim as ~equired by the Act. The respondents filed the statement, but the officer held that it was out of time and discharged the debt. In appeai the Commis-B sioner 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 ju~isdiction to entertain or try the appeal. The High Court dismissed the petition s.ummarily. The contention was that the High Court's order was not final order because. it did not decide the controversy bet-c ween the parties and did not of its own force affect the rights of the parties or p11t an end to the controversy. This court observed: (1) that the word 'proceeding' in Art. 133 ~as word of very wide import, (2) that the contention that'ilie 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 re-vision remaine\i still alive after the High Court's order, ( 3) but petition under Art. 226 was proceeding independent of the original controversy between the parties; the question therein would be whether proceeding before Tribunal or an authority or court should be quashed on the ground of want of jurisdic-tion or on other well recognised grounds and that the decision in such, petition, whether interfering or declining to interfere, was 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 . betwe.en 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. If, for instance, the jurisdiction of the inferior tribunal was chal-lenged and the High Court either upheld it or did not, its ordec would be final.

The effect of this decision is that writ petition under Art. 226 is proceeding in.dependent of the .original· proceedings bet-ween 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 pend-H ing 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 pro-ceeding independent of such original proceedings; and that if the L2 Sup Cl/68-14order finally determines the controversy in such 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 re-mained undisposed of. An illustration of such case 1s to be found in the State of Orissa v. Madan Gopal('). The dispute there was whe,tber the State Government had tbe 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 C,,de of Civil Pro-cedure but apprehensive that before the prescribed period ex-pired, the State might annul their leases filed writ petition. The High· Court di~ \lOt decide the tiisputc but granted man-damus 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 r¢mained to be deter-mined in the proposed suits. Though the order had not deter-mined the rights of the parties, this Court negatived the conten-tion and held that the order was final as 'in view of the fact that with these orders the petitions were disposed of finally and noth-ing further remained to be done in respect of the petitio!li",

Facts similar to the facts in the present case were in Durga Prasad v. State of U.P.('). complaint was filed charging the applicant with offences, imer alia, under s. 193 of the Penal Code. 1be applicant filed an appeal before the Sessions Judge under s. 4 76B 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 fil-ing the complaint. Io 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 beld 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 deter-mination 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 bet-ween the parties involved in the two proceedings. One was the complaint which charged the applicant with the offence under s. 193 of the Penal Code and the other was the appeal which he (l) [19llJ S.C.R. 28. (21 A.J.R. 196) All. 728.

(21 A.J.R. 196) All. 728.

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 Pro-cedure. The order was held not to be final because it did not de-termine the latter controversy viz., whether the complaint was justified and not on the ground that the controversy in the com-plaint 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 !ht: Sessions Judge the High Court had held either that it was justified or not justified. This decision is in conformity with the ratio Jiiid down in Ramesh v. Patni(') and·State of Orissa v. Madan Gopa/(2) .

The aforesaid' discussion leads to the conclusion that when the Magistrate ordered the filing of the complaint against the ap-pellant, 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 Qefore the Addi-tional Sessions Judge was against the order filing the complaint, the controversy therein raised being whether the Magistrate was justified iil 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 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 absenc.e of 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 justi-G fied or not was finally. decided. As observed in Ramesh v. Patni(') the finality of that order was not to be judged by co-relating 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 final order within the meaning of Art. 134(l)(c).

(I) 11966] 3 S.C.R. 198.

(2) [1952] S.C.R 28.

Even so, the next ques_tion is whether this was case where the High Coun could have granted the' cenificatc. In Haripada Dey v. The State of West Benga/,(1) it was held that the High Court had no jurisdiction to grant certificate under An. 134(1)(c) on mere question of fact. In Babu v. State of Uttar Pradesh, ( [2 ]) it was again observed that the Constitution docs not confer ordinary criminal jurisdiction on this Coun except in cases covered. by clauses (a) and ( b) of An. 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 case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of cenificate under An. 134 ( 1) ( c) which alone applies in this case. The question in the revision application before the. High Court was wliether the Magistrate was right in his conclu-sion that offences referred to in s. 195 ( 1 )(b) or ( c) of the Code of Criminal Procedure ar,:icared to have been committed in or in relation to proceeding in his court and that it was expedient in the interest of justice to file complaint. Obviously, this is question of fact and involve no substantial question of law or principle. It seems that the certificate was issued becaue it appear-ed as if the single Judge in the language in which he passed his order meant that the High Court as matter of Jaw woulc! never exercise its revisional iurisdiction in such cases. The order, how-ever, cannot mean that the High Court cannot entcnain and decide revision applications in respect of orders passed under 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 Coun would not interfere particularly where there is 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 <lf law or principle, the High Court was not competent to certify the case under Art. 134 (I)( c).

In this view it is not necessary to go into the contentions or. merits raised by the appellant's counsel. The appeal is not main-tainable and is dismissed.

Bacbawat, 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 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 prima facie case for enquiry into the (t) it956] S.C.R. 639. (2) [1965] 2 S.C.R. 771.

offences and it was expedient in the interests of justice that such an enquiry should be made. In an :,ippeal filed after the com-plaint 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 complaint with regard to the offence punishable under s. 205 read with s. 114. 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, prosecution for an offence punishable under s. 205 read with s. 114 alleged to have been committed in relation to proceeding in any Court cannot be launched without complaint in writing of such Court or of superior Court. The effect of tke order of the High Court con-firming the direction for the filing of complaint in respect of the offence is that the oar 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 the offence by competent Court and an order of conviction or acquittal is yet to foJ!ow. The order of the High Court involves no determination of the merits of tlie 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 civil proceeding, an order is final if it finally decides the rights of the parties, see Ramchand Manjilal -v. Goverdhandas Vishindas Ratanchand ([1]). If it does not finally decide the rights of the parties the order is interlocutory, though it conclusively determines some subordinate matter ano disposes of the proceed-ing in which the subordinate matter is in controversy. For. this reason, even an order setting aside an award is interlocutory, 6ee Croasdell and Cammell Laird & Co., Limited v. In re('). similar test has been applied for determining whether an order in criminal proceeding is final, see S. Kuppuswami Rao v. The King([3]). For the purposes of this appeal, we do not propose to examine all the decisions cited at the bar and to formulate fresh test on the subject. Whatever test is applied, an order directing the filing of complaint and deciding that there. is prima facie case for an enquiry into an offence is not final order. It is merely preliminary step in the prosecution and therefore an interlocutory order. As the order is not final. the High Court was not competent to give certificate under Art. 134(1)(c) of the Constitution. The appeal is not maintainable and is dismissed.

Appeal dismissed.

I I) [1920] L.R. 47 LA. 124.

(2) [19,161 2 K.B 569.