( 1 ) THE question is whether leave to appeal to the Supreme Court should be given under Article 134 (1) (c) of the Constitution against the refusal by the High Court of Gujarat to give leave to appeal to the High Court against an order of acquittal under sub-sec. (3) of sec. 417 of the Code of Criminal Procedure.

( 2 ) A High Court should not give leave to appeal to the Supreme Court under Article 134 of the Constitution unless the case falls within that Article. Article 134 (1) of the Constitution reads thus:- an appeal shall lie to the Supreme Court from any judgment final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court (A) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (B) has withdrawn for trial before itself any case from any Court subordinate So its authority and has in such trial convicted the accused person and sentenced him to death; or (C) certifies that the case is a fit one for appeal to the Supreme court. The Article then gives the conditions to be satisfied.

( 3 ) THE case would therefore fall under Article 134 of the Consti- tution if there is a judgment final order or sentence. In this particular cases the words judgment or sentence do not apply and it is only contended that the words final order would apply. In such a case (1) there must be an order (2) it must be a final order and (3) it must be in a criminal proceeding.

( 4 ) BEFORE there can be an order the Court must order somebody to do something or decide the existence or non-existence of somebodys right or decide someones guilt. It may be an order sentencing a man to jail or imposing a fine or dismissing an appeal. An order dismissing an appeal summarily or otherwise is treated as an order under sec. 425 Cr. P. C. Before there can be an order the Court must decide the existence or non-existence of the rights of the parties. When the Court declines to give leave under sec. 417 (3) Cr. P. C. it does not decide and determine the rights of the parties. It does not decide anything.

( 5 ) OSBORNE in his Judicial Dictionary says that an order is a com- mand or direction in a proceeding or matter other than decree or judg- ment. Lord Esher stated that a judgment is considered a decision in an action of a previously existing liability and every other decision of a Court is an order.

( 6 ) SEC. 425 Cr. P. C. provides that an order by the High Court decid- ing a case on appeal should be certified to the lower Court. But there is no provision that when an application under sec. 417 (3) Cr. P. C. is decided the decision should be certified to the lower Court. There is no provision in the Cr. Pro. Code treating a refusal to give leave to appeal under sec. 417 (3) Cr. P. Code as an order. It is only when an appeal is filed and decided that there is an order.

( 7 ) THE second requirement is that the order should be final one. The word final is used as distinguished from interim. The expression final order therefore means that the order must be one which the Court passing it is not going to alter or revise and cannot alter or revise although a superior Court may interfere with the order. The word final is not used in the sense conclusive because if it is conclusive there can be no leave to appeal.

( 8 ) AS held by the Privy Council in Abdul Rahman v. Cassim and Sons A. I. R. 1933 P. C. 58 an order which decides an important and even a vital issue would not be a final decision if it does not decide and finally dispose of the rights of the parties.

( 9 ) IF the High Court declines to give leave to appeal against acquit- tal under sec. 417 (3) Cr. P. C. it is not an order of the High Court. If it is an order of the High Court appealable under Article 134 of the Consti- tution the appeal should be confined to challenging the correctness of the High Courts order declining to give leave. If the Supreme Court thinks at the High Court was wrong in declining