DILIP KUMAR GHOSH Vs. STATE

JUDGEMENT

(1.) The petitioner who asks for a certificate under Article 134 (1) (c) of the Constitution was placed on his trial on a charge under Section 366 of the Indian Penal Code and tried by the Assistant Sessions Judge of 24-Paraganas with the help of a jury. As a result of the trial the jury brought in unanimous verdict of not guilty in favour of the petitioner and the learned Judge accepting the said verdict acquitted him. Against the order of acquittal one Indu Bhusan Roy Choudhury who describes himself as the father of the girl alleged to have been abducted filed a petition under Section 430 of the Code of Criminal Procedure in this Court for setting aside the order of acquittal and obtained a Rule. The Rule was heard by a Division Bench which by a judgment dated January 25, 1961, has set aside the order of acquittal and directed that the petitioner be retried by an Additional Sessions Judge to be selected by the Sessions Judge of 24-Paraganas. Against this order of the Division Bench the petitioner now intends to take a further appeal to the Supreme Court.

(2.) According to the established view of this Court based upon several decisions of the Privy Council, the Federal Court and the Supreme Court an order like this is neither a judgment nor a final order within the meaning of Article 134 (1) of the. Constitution, but the learned Advocate appearing for the petitioner relies upon a judgment of a Division Bench of this Court in the matter of an application under Article 134 (1) (c) of the Constitution in Appeal No. 423 of 1958, Abinas Chandra Bose v. Bimal Krishna Sen, D/- 12-5-1961 (unreported) (now in support of the proposition that such an order is a judgment and final order within the meaning of Article 134 (1) of the Constitution. I have, therefore, to review briefly the state of authorities bearing on the point

(3.) The words "judgment and final order" which occur in Article 134 (1) also occur in Article 133 (1) of the Constitution and Section 109 of the Code of Civil procedure and they also occurred in Section 205 of the Government of India Act, 1935. In the case of Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas, 47 Ind App 124 : (AIR 1920 PC 86), the Privy Council had to consider whether an order refusing to stay a suit under the Arbitration Act was a judgment or final order within the meaning of Section 109 of the Code of Civil Procedure, and answered that question in the negative. That decision was followed by Sir George Lowndes ia the case, of Abdul Rahman v D.K. Cassim and Sons, 60 Ind App 76 : (AIR 1933 PC 58) where the Privy Council had to consider the question whether an order of remand was a judgment or final order within the meaning of Section 109 of the Code of Civil Procedure and again answered that question in the negative. These two decisions of the Privy Council were followed by Sulaiman J., in the case of Dr. Hari Ram Singh" v. Emperor, AIR 1939 FC 43. In this case the appellant before the Federal Court was placed on his trial under Section 477-A of the Indian Penal Code, and the appellant took the plea in the Trial Court that the prosecution was not maintainable in the absence of the sanction of the Governor under Section 270 of the Government of India Act 1935. The Trial Court upheld that plea and dismissed the prosecution case. Against that order of the Trial Count the Crown filed an appeal before the Lahore High Court which held that no sanction of the Governor was necessary and directed a retrial. The High Court, however, granted a certificate under Section 205 of the Government of India Act. The point as to whether an appeal lay to the Federal Court against an order or retrial was not raised by the respondent to the appeal but Sulaiman, J., raised the point for himself and considered the question whether the order appealed from was a judgment or final order within the meaning of Section 205 of the Government of India Act After referring to the Privy Council Judgments and certain other English Authorities His Lordship made the following observations at page 48: