TMI Blog1967 (12) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he was not the person who had stood as surely. 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to go on ? 6. The first test was applied in Salaman v. Warner [1891] 1 Q.B. 734, and Standard Discount Co. v. La Grange [1877] 3 C.P.D. 67. But the reasoning in the latter case was disapproved in A.G. v. Great Eastern Rail Co. [1879] 27 W.R. 759. In Shutrook v. Tufnell [1882] 9 Q.B.D. 621, 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 [1903] 1 K.B. 547, by Lord Halsbury who declined to follow the dictum in Salaman v. Warner [1891] 1 Q.B. 734, and Lord Alverstone stated the test as follows :- Does the judgment or order as made finally dispose of the rights of the parties ? 7. This test, however, does not seem to have been applied in A.G. v. Great Eastern Urban Council [1903] 1 K.B. 547, 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order disposed of the original suit or proceeding. If it did not, and the suit or proceeding was a 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 Satramdas v. The State of Bihar [1951]19ITR108(SC) , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 because 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive that before the prescribed period expired, the State might annual 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 determined 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 . 8. Facts similar to the facts in the present case were in Durga Prasad v. State of U.P. AIR1960All728 . A complaint was filed charging the applicant with offences, inter alia, under s. 193 of the Penal Code. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 revision 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 [1966]3SCR198 , the finality of that order was not to be judged by correlating 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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. 12. Bachawat, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
