Full Judgment
Nigam, J.C.
1. Shambhu Nath Mehra, Camp Clerk in the office of the Divisional Engineer Telegraphs, Ajmer, was prosecuted for charging travelling, allowance for three journeys which he was alleged to have performed without purchasing railway tickets. He was convicted by the learned Magistrate in respect of two journeys but his appeal was allowed by the learned Sessions Judge. The State appealed against that order of acquittal and on 2-1-1953 I accepted the appeal and remanded the case to the Special Judge. Now Shambhu Nath Mehra applied under Article 134 of the Constitution for a certificate that it is a fit case for appeal to the Hon'ble Supreme Court.
2. A preliminary objection has been taken to. the effect that Article 134 does not confer any right of appeal in as much as the order of this Court dated 2-1-1953 was not a 'final order' within the meaning of that Article. This is the only point that has been canvassed before me. I have heard the learned Counsel for the applicant and the learned Public Prosecutor, Special Police Establishment.
3. I have been referred to - Rahimbhoy Habibbhoy v. C. A. Turner 15 Bom 155 (A); - Hori Singh v. Emperor AIR 1939 PC 43 (B) and - 'Kuppuswami Rao v. The King' AIR 1949 FC 1 (C). The learned Counsel for the applicant has conceded that if the word 'final order' used in Article 134 is to be interpreted as meaning a 'final-disposal of the suit', then the applicant will have no right of appeal under Article 134. The learned Counsel's contention, however, is that it is Article 132 of the Constitution which corresponds with Section 205 of the Government of India Act 1935 and as the words used in Article 132, the words 'final order' must be given a different meaning.
The contention of the learned Counsel in brief. is that the relevant phrase in Article 134 is 'final order or sentence in a criminal proceeding of a High Court'. The learned Counsel argues that a right of appeal has been conferred against every 'final order' in a criminal proceeding which was pending in a High Court. The suggestion is that a right of appeal exists against the final disposal of every proceeding of a High Court of a criminal nature if it finally disposes of that proceeding even if it does not finally dispose of the case against the accused. The learned Counsel has referred me to Article 132 and Article 134. In Article 132, the relevant words are 'final order of a High Court in the territory of India, whether in a Civil, Criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution'. The learned Counsel stresses the difference that in Article 132 the words are 'final order of a High Court' whereas in Article 134 the final order is 'in a criminal proceedings'.
4. I am unable to agree with the learned Counsel. Articles 132 and 134 have to be taken together. Article 132 was intended to confer a right of appeal in every case whether civil or criminal (or other proceeding) if the case involved a substantial question of law as to the interpretation of the Constitution. Article 133 intended to confer a right of appeal against any judgment, decree or final order of a High Court in a civil proceeding. Similarly Article 134 was Intended to confer a right of appeal against any judgment, final order or sentence of a High Court in a criminal proceeding.
5. Besides, I am also of opinion that the interpretation put by the learned Counsel on the words 'final order or sentence in a criminal proceeding' are not warranted by the language of Article 134.
The words used are not 'criminal proceeding in a High Court' or 'criminal proceeding before a High Court'. In my opinion 'or' can only refer back to the phrase 'any judgment, final order or sentence' and not to the word 'proceeding'.
6. No other point has been pressed before me. As a matter of fact, in view of my decision on this preliminary objection it was not necessary to raise any other point.
7. I am, therefore, of opinion that the applicant is not entitled to a certificate under Article 134 which is refused.