DURGA PRASAD KHOSLA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS is an application under Article 134 of the Constitution praying that the case be certified as a fit one for appeal to the Supreme Court.

(2.) IT is not necessary to give the facts In great detail. It will be sufficient to mention that a complaint was filed against the applicant charging him with several offences including one Under Section 193 IPC Against the order filing tie complaint the applicant went up in appeal to the Ses sions Judge Under Section 476 B of the Criminal ; Procedure Code. The Sessions Judge took the view that the order appealed against was wrong because Section 476 Cr. PC, under which the complaint had 'been ordered to be filed had been impliedly overruled by Section 479 A of the amended Criminal Procedure Code. He therefore allowed the appeal and set aside the complaint so far as the offence Under Section 193 I, P. C, was concerned. Against that order an application in revision was filed in this Court and the question whether Section 479 A of the Criminal Procedure Code had impliedly repealed Section 476 of the Code in respect of all cases of witnesses giving or fabricating false evidence in judicial proceedings was raised. The question was referred to a Division Bench and the Division Bench was of opinion that it should be answered in the negative. As a result of that decision the order of the Sessions Judge was set aside and the case was sent back to him for being heard on merits. It is against this last mentioned order sending the case back to the Sessions Judge for being considered on merits that the present application under Article 134 (1) (c) of the Constitution has been made and it is contended that as the question is of substantial importance the case should be certified as a fit one for. appeal to the Supreme Court.

(3.) A preliminary objection is raised on behalf of die opposite party and it is contended that no certificate can be granted as prayed because the order against which an appeal is sought to be preferred in the Supreme Court is not a final order as contemplated by Article 134. In support of the preliminary objection learned Counsel for the opposite party relies on two cases of the Federal Court reported in S. Kuppuswami Rao v. The' King A. I. R. 1949 FC 1 and Sridhar Achari v. The King A. I. R. 1949 FC 11. These cases, it is pointed out, had been followed subsequently in three other cases by the High Courts, viz. , Sobha Singh v. Jai Singh A. I. R. 1954 Him Pra 45, State v. I. Apprehen A. I. R. 1954 Trav Co. 250 and Radhey Shiam v. The State A. I. R. 1955 NUC (All) 4432. By way of analogy it is also point ed out by the learned Counsel for the opposite party that the order sought to be appealed against is similar to an order against the order of remand in a civil case where the main dispute has been left for being decided by the trial Court. It is urged that such an order would not have been a final order for the purposes of Article 133 of the Constitution or Section 109 of the Civil Procedure Code. Reference is made in this connection to the eases of V. M. Abdul Rahman v. D. K. Cassim and Sons A. I. R. 1933 PC 58 and Moolji Jaitha T and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. A. I. R. 1950 FC 83.