A. R. BAKSHI, J. ( 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High Court (A) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (B) has withdrawn for trial before itself any case from any Court subordinate So its authority and has in such trial convicted the accused person and sentenced him to death; or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. 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. ( 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 to give the leave the only order that the Supreme Court can pass would be to grant leave under sec. 417 (3) Cr. P. C. It cannot interfere with the acquittal. This also shows that the Constitution did not intend that Article 134 should apply when the High Court declines to give leave to appeal against an order of acquittal under sec. 417 (3) Cr. P. C. ( 10 ) THE next requirement is that a final order should be passed in a criminal proceeding. An application for leave to appeal is not by itself a proceeding. An application is not a proceeding unless the applicant prays the Court to decide the existence or non-existence of the rights of the appli- cant or the rights or guilt of the opponent. An application for adjournment is not a proceeding. An application for permission to leave to initiate another proceeding is not a proceeding. ( 11 ) MOREOVER an application for leave to apppeal against an acquittal under sec. 417 (3) Cr. P. C. is not criminal proceeding because no sentence of fine or imprisonment can be imposed or set aside at the end of that application. The application is not a criminal proceeding merely because it may lead to another proceeding which is criminal. If the application for leave to appeal against an order of acquittal is granted the applicant wig have to file an appeal and that appeal would be a criminal proceeding. What happened after the acquittal and before the filing of the appeal would not be a criminal proceeding. Some Jurists have observed that criminal proceedings include all proceedings which are capable of being instituted under the ordinary criminal law of land. That is perhaps a little too wide. What happened after the acquittal and before the filing of the appeal would not be a criminal proceeding. Some Jurists have observed that criminal proceedings include all proceedings which are capable of being instituted under the ordinary criminal law of land. That is perhaps a little too wide. An appeal would of course be a criminal proceeding but what happened after the order of acquittal and before the appeal is filed is not a criminal proceeding although provision for obtaining leave is made in sec. 417 (3) Cr. P. C. That sub-section refers to leave to initiate criminal proceedings. An application for leave to initiate criminal proceeding is not a criminal proceeding. It is not necessary to decide now in this case but perhaps the idea of criminal proceeding implies a proceeding against a person. A proceeding is one where one party seeks to enforce in a Court of Justice some rights against another or restrain the commission of wrong against another party. There must be two parties to a proceeding. When one applies for leave under sec. 417 (3) Cr. P. C. there are no two parties and there is no proceeding. ( 12 ) IN Laws of England Halsbury observes thus: When used alone proceeding is in certain statutes to be construed as synony- mous with; or including. action. An action according to the legal meaning of the term is a proceeding by which one party seeks in a Court of Justice to enforce some right against or to restrain the commission of some wrong by another party. In its wider meaning the term includes both civil and criminal proceeding. (Vide Halsburys Laws of England Note 7 p. 5 and Note 1 p. 2 ). ( 13 ) AN application under sec. 417 (3) Cr. P. C. is not a criminal proceeding. Because an appeal lies under sec. 476 (b) Cr. P. C. and because an application under sec. 476 may or may not be a criminal proceeding it does not mean that an application under sec. 417 (3) Cr. P. C. is a criminal proceeding. Under sec. 476 Cr. P. C. a person makes an appli- cation to the Court which after receiving the application has to make an inquiry and may send an accused person in custody. It may take sufficient security for the appearance of the accused before the Magistrate. 417 (3) Cr. P. C. is a criminal proceeding. Under sec. 476 Cr. P. C. a person makes an appli- cation to the Court which after receiving the application has to make an inquiry and may send an accused person in custody. It may take sufficient security for the appearance of the accused before the Magistrate. These provisions clearly show that the proceedings are criminal. Before a proceed- ing can be said to be criminal there must be a possibility in that very proceeding of passing an order of sentence of imprisonment or fine or forfeiture or passing an order confirming or setting aside such an order of holding that a person is not liable to any of these things. See 1921 Appeal Cases 570 where the meaning of the expression criminal is considered. ( 14 ) IT is contended that when the High Court declines to give-leave to appeal against an order of acquittal under sec. 417 (3) Cr. P. C. it passes a final order because it is provided in sub-sec. (5) of sec. 417 Cr. P. C as under :if. in any case the application under sub-sec. (3) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acqui- tal shall be under sub-sec. (1 ). ( 15 ) AS already observed the word final is not used in the sense of conclusive but the word final is contra distinguished from the word interim. In any case sub-sec. (5) of sec. 417 Cr. P. C. provides only that the order of acquittal of the Magistrate is final under the Cr. P. C. It does not provide that declining to grant leave to appeal under sec. 417 Cr. P. C. is an order and is a final order. ( 16 ) IN Kuppuswami Rao v. The King A. I. R. 1949 Federal Court 1 their Lordships of the Federal Court observed as follows: the question then is what is the meaning of judgment decree or final order of a High Court in this section? The expression final order has been judicially interpreted and its meaning is now well settled. The expression final order has been judicially interpreted and its meaning is now well settled. In Salaman v. Warner (1891) I. Q. B. 734 (60 L. J. Q. B. 624) Lord Esher M. R. discussed this meaning of the expres- sion final order in these terms:if their decision whichever way it is given will if it stands finally dispose of the matter in dispute I think that for the purposes of these rules it is final. On the other hand if their decision if given in one way will finally dispose of the matter in dispute but is given in the other will allow the action to go on then I think it is not final but interlocutory. Fry L. J. remarked as follows :i conceive that an order is final only where it is made upon an application or other proceeding which must whether such application or other proceeding fail or succeed determine the action. Conversely I think that an order is interlocutory where is cannot be affirmed that in either event the action will be determined. Lopes L. J. said as follows:i think that a judgment or other would be final within the meaning of the rules when whichever way it went it would finally determine the rights of the parties. ( 17 ) ANOTHER test is that if it is to be a final order it must as observed by Lopes L. J determine the rights of the parties and thereby it must dispose of the rights of the parties. ( 18 ) IN Seth Premchand Satramdas v. The State of Bihar 1960 Supreme Court Reports 799 at p. 804 it has been observed by the Supreme Court that if an order is to be treated as a final order it must of its own force bind or affect the rights of the parties. When the High Court declines to give leave to appeal against an order of acquittal under sec. 417 (3) Cr. P. C. it does not decide the rights of the parties at all which are decided in the judgment of acquittal and the rights would be decided again only if an appeal is filed and it is decided. The expression final order is similarly construed in Jethanand and Sons v. State of U. P. A. I. R 1961 Supreme Court 794 at p. 796. The expression final order is similarly construed in Jethanand and Sons v. State of U. P. A. I. R 1961 Supreme Court 794 at p. 796. At p. 796 it was held that an order if the High Court which did not decide any question relating to the rights if the parties in dispute is not a final order. It was held that an order is final if it amounts to a final decision relating to the rights of the parties in dispute. ( 19 ) IT is contended that this test of Lord Esher which was accepted as proper by the Federal Court in A. I. R. 1949 Federal Court 1 is not correct because if an appeal is summarily dismissed there would be an end of the appeal. But if the contrary order is passed namely admitting the appeal then there would be a hearing of the appeal. This contention is not correct because an appeal is summarily dismissed when according to the Court there is no sufficient ground for interference (vide the wording of sec. 421 Cr. P. C. ). A contrary case would be when the Court sees sufficient ground for interference. The Court sees sufficient ground for interference only when the appeal is allowed either in whole or in part. An order admitting the appeal is not a contrary order. In fact it is not a final order. ( 20 ) IN my opinion the test of Lord Esher is a good one. It may not be an exhausting test but it is useful in determining what is not a final order. In the present case an order granting leave to appeal against an order of acquittal under sec. 417 (3) Cr. P. C. would not be a final order and therefore an order declining to grant leave would not be a final order. As observed in A. I. R. 1949 Federal Court 1 at p. 5 to be a final order the order must be on a point which decided either way would terminate the matter before the Court finally. . ( 21 ) AN order admitting a criminal appeal cannot be said to be final order passed in criminal proceedings so as to give a right to appeal to the Supreme Court under Article 134 of the Constitution. . ( 21 ) AN order admitting a criminal appeal cannot be said to be final order passed in criminal proceedings so as to give a right to appeal to the Supreme Court under Article 134 of the Constitution. Similarly an order refusing an application for adjournment of a criminal matter cannot be said to be a final order in a criminal proceeding. Declining to grant leave or permission to appeal against an order of acquittal under sec. 417 (3) Cr. P. C. cannot therefore be said to be a final order although one may refer to it as an order refusing leave or one rejecting the application. When a Judge declines to give leave under sec. 417 (3) Cr. P. C. he does not do anything positive. He does not decide the existence or non-existence of any rights or guilt. ( 22 ) SEVERAL English cases have been cited before us where the meaning of the expression criminal cause or matter is considered by the English Courts. As observed by their Lordships of the Supreme Court it would not be much useful to refer to those cases where the expression different from that used in the Indian statutes has been considered. In Art. 134 of the Constitution the expression used is criminal proceeding. It may be that the expression criminal matter is much wider than criminal pro- ceeding. It is not necessary to consider the English cases cited or to consider the question whether the expression criminal matter is wider than the expression criminal proceeding. In Art. 134 of the Constitution the expression used is criminal proceeding. It may be that the expression criminal matter is much wider than criminal pro- ceeding. It is not necessary to consider the English cases cited or to consider the question whether the expression criminal matter is wider than the expression criminal proceeding. ( 23 ) ON the question whether leave to appeal against an acquittal can be granted under Art. 134 (1) (c) of the Constitution I am inclined to agree with the Full Bench of the Allahabad High Court in State of U. P. v. Jag Raj A. I. R. 1960 Allahabad 630 ( 24 ) ON the question as to when a certificate has to granted the Orissa High Court has observed in State of Orissa v. Minaketan A. I. R. 1953 Orissa 160 as follows :though Article 134 (1) is wide enough to cover a case of appeal to Supreme Court against acquittal the standard applicable in respect of Article 133 (1) (c) is not same as indicated in Article 133 (1) (c) which relates to civil matters; notwithstand- ing that the requirement in the two said sub-clauses (c) is couched in the same terms viz. if the High Court certifies that the case is a fit one for appeal to the Supreme Court. . . . . . . . . . . . . . . But so far as Article 134 (1) (c) is concerned it is now settled by a series of decisions of all the High Courts in which the question arose after the commencement of the new constitution that the principles which regulate the grant of leave in criminal matters under the said clause are to be the principles which were adopted by the Privy Council as regulating the grant by that tribunal for special leave to appeal to itself ( 25 ) THEIR Lordships of the Supreme Court have observed in Baladin v. State of U. P. A. I. R. 1956 S. C. 181 as follows certificate cannot be granted under sub-Art. (c) of Art. 134 (1) if the High Court is in doubt about the facts. . . . . . . . . They Cannot issue a certificate because they cannot make up their minds about the facts. . . . . . . . . They Cannot issue a certificate because they cannot make up their minds about the facts. ( 26 ) THE case before us is a matter in which there is a serious doubt on several questions whether there has been an entrustment by executing a power of attorney and whether there is sufficient evidence to prove the misappropriation. In these circumstances this is clearly not a case in which a certificate should be granted under Article 134 (1) (c) of the Constitution. ( 27 ) ON the merits also therefore I see no good reason to grant leave to appeal to the Supreme Court. The acquittal order was passed by the learned Judicial Magistrate First Class Broach in a complaint filed by one Tempton Jehangir against Ranchhoddas charging the latter with an offence under sec. 406 Indian Penal Code. The case of the complainant was that Ranchhoddas was appointed administrator of the property jointly with the complainant of the estate known as Amjad Baug Estate under an order of the District Judge Surat dated 15-10-1960. Further the case of the complainant was that he gave a power of attorney to Ranchhoddas on the specific understanding that the latter alone was to manage the property and collect the rent and other income of the property and to distribute the same amongst the sharers of the Estate. According to the complainant Ranchhoddas misappropriated the sale proceeds of the property entrusted to him in violation of the understanding with regard to the discharge of the trust by selling the superstructures of blocks Nos. 2 and 3 and by selling 2 blocks of the said Estate and by selling Godown No. 11. The learned Magistrate held that the letter Ex. 43 written by the accused Ranchhoddas to the other partner owners of the estate does not amount to entrustment of the property to the accused in the hands of complainant or other partner owners of the said property. The learned Magistrate also held that the entrustment of the immovable property of the said estate can never be the entrustment of its income because the same could not be in existence on the day of the alleged entrustment of the immovable property. The learned Magistrate also held that the entrustment of the immovable property of the said estate can never be the entrustment of its income because the same could not be in existence on the day of the alleged entrustment of the immovable property. ( 28 ) THE learned Magistrate also observed that both the complainant and the accused Ranchhoddas were appointed joint administrators by the District Court and that even assuming that the accused was under an obligation to render accounts to the District Court under sec. 317 of) the Indian Succession Act he may be prosecuted only for an offence under sec. 176 or sec. 193 I. P. Code as provided in sub-secs. (3) and (4) of sec. 317 of the said Act. The learned Magistrate observed that in this view of the case also the prosecution was in-conceived of and does not lie. The learned Magistrate therefore concluded that the complainant has failed to prove entrustment of the property or liability of the accused under sec. 317 of the Indian Succession Act. ( 29 ) THE learned Magistrate relied on the cross-examination of the complainant Ex. 37 and observed that the cross-examination is more than sufficient to prove that the accused had taken all care to keep the other partners including the complainant informed about the affairs of the said testate and has taken care to manage the estate as a prudent man with ordinary common sense would do in the circumstances in which he found the estate. He also held that Ex. 40 namely the statement of accounts submitted by the accused before the Income-tax Authorities was not suffi- cient to enter any misappropriation. ( 30 ) THE learned Magistrate finally concluded as follows:on the consideration therefore of the truth of the documentary and oral evidence in this case and the points of law raised by the parties I conclude that complainant has failed to prove the ingredients of the offence under section 406 I. P. Code charged against the accused. He is therefore found not guilty and the following order is passed. ( 31 ) IT is not necessary to decide whether the learned Magistrates view that there cannot be any criminal breach of trust in respect of immove- able property is right or wrong. No doubt the word property in sec. He is therefore found not guilty and the following order is passed. ( 31 ) IT is not necessary to decide whether the learned Magistrates view that there cannot be any criminal breach of trust in respect of immove- able property is right or wrong. No doubt the word property in sec. 405 I. P. Code is unqualified and ordinarily there is no reason to restrict the meaning of the word property unless the context requires it. But we must also note that the expressions used in the same section namely dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property. This expression may in- some cases be applied to immovable property and it may be that in some cases it cannot be applied to immovable property by reason of the words that precede the words that property. ( 32 ) BUT apart from this question in view of the other reasons given by the learned Magistrate there is no reason to give leave to appeal to the High Court against the order of acquittal. Both the complainant and the accused were appointed joint administrators of the property. The property was therefore perhaps entrusted to both the complainant and the accused. The power of attorney given by the complainant to the accused would not amount to entrustment of the property. Such a power of attorney would amount to authorising the accused to deal with the property on behalf of the complainant and as agent of the complainant. Responsibility if any for those acts would be of the complainant himself. Alleged understanding would not amount to entrustment of any specific property dominion over property. ( 33 ) IN order to prove the alleged misappropriation the complainant according to the learned Magistrate has relied upon the statement of accounts submitted by the accused before the Income-tax Authorities. After considering the statement in the cross-examination of the complai- nant the learned Magistrate has come to the conclusion that the accused has taken all care to keep the other partners including the complainant informed about the affairs of the said estate and has taken care to manage the estate as a prudent man with ordinary common sense would do under the circumstances under which he found the estate. The learned Magistrate also gave a finding that criminal misappropriation had not been proved. The learned Magistrate also gave a finding that criminal misappropriation had not been proved. In view of this I see no reason to grant leave to appeal to the Supreme Court against the refusal by the High Court to grant leave to appeal to the High Court against the acquittal of the accused under sec. 417 (3) Cr. Pro. Code. ( 34 ) IN State Government M. P. v. Ramkrishna A. I. R. 1954 Supreme Court 20 their Lordships of the Supreme Court have observed as follows :article 134 does not provide for an appeal from a judgment final order or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal. In other words there is no provision in the Constitution corresponding to sec. 417 Criminal P. C. and such an order is final subject however to the overriding powers vested in the Supreme Court by Art. 136 of the Constitution. ( 35 ) IN a subsequent case namely State of Madras v. Gurviah Naidu A. I. R. 1956 S. C. 158 their Lordships have observed as follows : that the observation in A. I. R. 1954 S. C. 20 that there is no provision in the Constitution corresponding to sec. 417 Cr. P. C. was obviously made to emphasise that the Supreme Court should not in an appeal by special leave interfere with an order of acquittal passed by the High Court merely for correcting errors of facts or law. A fortiori these observations may be applied to a case where the High Court refuses to grant leave to appeal to a private complainant against an acquittal under sub-sec. (3) of sec. 417 Cr. P. C. I have already referred to the observations of their Lordships of the Supreme Court in A. I. R. 1956 S. C. 181. I would therefore hold that merely for correcting errors of facts or law that may be in the judgment of the High Court the High Court should not grant leave to appeal under Article 134 (1) (c) of the Constitution. I would therefore hold that merely for correcting errors of facts or law that may be in the judgment of the High Court the High Court should not grant leave to appeal under Article 134 (1) (c) of the Constitution. ( 36 ) THE two questions of fact whether there was an entrustment by executing a power of attorney and whether there was criminal mis-appro- priation of the very property which was entrusted are not free from doubt and for this reason also in view of the decision of their Lordships of the Supreme Court in A. I. R. 1956 S. C. 181 this is not in my opinion a case in which certificate should be granted under Article 134 (1) (c) of the Constituction. ( 37 ) I therefore refuse to grant a Certificate under Article 134 (1) (c) of the Constitution. ( 38 ) DIVAN J. This application under Article 134 (1) (c) of the Consti- tution of India arises under the following circumstances : ( 39 ) THE petitioner in this application is the original complainant and he had filed a complaint against opponent No. 1 in the Court of the judicial Magistrate First Class at Broach alleging that an offence punish- able under sec. 406 of the I. P. C. had been committed by the first opponent. The case of the complainant in the trial Court was that there is some property at Broach known as Amjad Baug Estate. On or about October 16 1950 the District Judge Surat had appointed the complainant and opponent No. 1 the accused as administrators of this estate and that order was passed in Miscellaneous Application No. 26/12 of the Court of the District Judge at Surat. On or about October 16 1950 the District Judge Surat had appointed the complainant and opponent No. 1 the accused as administrators of this estate and that order was passed in Miscellaneous Application No. 26/12 of the Court of the District Judge at Surat. The complainants case was that he had given a power of attorney to the accused and the dominion over the entire property of Amjad Baug Estate was handed over by the complainant to the accused and according to the complainant there was a specific under standing that the accused alone was to manage the property and collect rents and other income of the property and to distribute the same amongst the sharers who were entitled to the income and properties of that estate In this capacity the accused had taken over the management of the property and according to the complainant the accused had dishonestly misappro- priated the sale proceeds of the immovable property entrusted to him and he had so misappropriated the amount in violation of the express understanding as regards the discharge of the trust. According to the complainant the accused had misappropriated the sale proceeds of different properties aggregating to Rs. 31 501 According to the complainant this amount of Rs. 31 501 which had been realized by the accused by sale of some of the immovable properties had not been shown by the accused in the accounts produced by him and hence this complaint was filed. ( 40 ) THE defence of the accused was that the complaint was a false complaint and that it had been filed at the instance of one Jamaji Firoz Dastoor a solicitor practising at Bombay because of certain serious differences of opinion between the accused and Dastoor. The accused contended that Dastoor had put up the present complainant to file this complaint. The accused contended that he had never given false accounts and that he had kept the sharers of the estate informed about all important matters pertaining to the estate. Meeting of the sharers were also held for deliberations and resolutions were also passed. The accused denied having misappropriated any amount. . ( 41 ) THE learned Magistrate before whom the complaint came up for final hearing held that the term property used in secs. Meeting of the sharers were also held for deliberations and resolutions were also passed. The accused denied having misappropriated any amount. . ( 41 ) THE learned Magistrate before whom the complaint came up for final hearing held that the term property used in secs. 405 and 406 of be I. P. C. refers only to movable property and he held that the sections did not contemplate entrustment of immovable property. The learned Magistrate relied upon the use of the words dishonestly misappropriated or converts to his own use occurring in sec. 403 of the I. P. C. for the purpose of interpreting the same words occurring in sec. 405 of the I. P. C. and held that these terms which were used in sec. 403 of the I. P. C. with respect to movable property can be inferred as having been used in the same context in secs. 405 and 406 of the I. P. C. and he held that immovable property was excepted from the purview of secs. 405 and 406 of the I. P. C. The learned Magistrate also held that the order passed by the District Judge Surat could not be read as creating a trust in the accused at the hands of the owners of the property. The learned Magistrate found that the entrustment of the immovable properties of the said estate could never mean entrustment of its income because the same could not be in existence on the date of the alleged entrustment of the immovable property. The learned Magistrate held that prosecution under sec. 406 of the I. P. C. was not contemplated by sec. 317 of the Indian Succession Act and therefore the complaint was in thought of and did not lie. The learned Magistrate in the light of these conclusions held that the complainant had failed to prove entrustment of property as required by sec. 406 of the I. P. C. or the liability of the accused under sec. 317 of the Indian Succession Act. The learned Magistrate held that in view of this conclusion of his the rest of the contentions viz. 406 of the I. P. C. or the liability of the accused under sec. 317 of the Indian Succession Act. The learned Magistrate held that in view of this conclusion of his the rest of the contentions viz. whether it was proved that the accused had misappropriated the amount or converted it to his own use or used it or disposed of the same secondly whether he had done so in violation of any direction of law prescribing the mode in which the said trust was to be discharged etc. and lastly whether the accused wilfully suffered any other person to misappropriate the amount dishonestly were not necessary to be decided. The learned Magistrate However entered into a discussion of these points and he held that the accused had taken care to manage the estate as a prudent man with ordinary common sense would do under the circumstances in which he could manage the estate. Thus both on the legal aspect and on the factual aspect the learned Magistrate found in favour of the accused. However the judgment of the learned Magistrate makes it clear that what weighed with him was the basic finding that the complainant had failed to prove entrustment of the property as required by secs. 405 and 406 of the I. P. C. because the entire discussion on the merits is confined only to a single page out of the entire judgment of 10 pages and the major part of the reasons of the judgment has been devoted to the point whether entrust- ment was proved or not. ( 42 ) THEREAFTER the complainant applied to this High Court under sec. 417 (3) of the Code of Criminal Procedure for leave to file an appeal against the order of acquittal passed by the learned Magistrate at Broach. This application being Criminal Application No. 148 of 1963 came up before my learned brother Raju and it was summarily dismissed by him on July 17 1963 It is against this order of dismissal of my learned brother Raju that the present Criminal Application for leave to Appeal to the Supreme Court has been filed. ( 43 ) THE matter came up before both of us on September 23 1963 On that date we issued rule and thereafter we have heard all the parties regarding this Application. ( 43 ) THE matter came up before both of us on September 23 1963 On that date we issued rule and thereafter we have heard all the parties regarding this Application. ( 44 ) UNDER Article 134 (a) (c) of the Constitution of India an appeal lies to the Supreme Court from any judgment final order or sentence in a criminal proceeding of a High Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court. Therefore it is clear from the language of that Article that the following requirements must be satisfied before the certificate can be issued:- (1) There must be an order. (2) The order must be a final order. (3) The final order must have been passed in a proceeding. (4) That proceeding must be a criminal proceeding of the High Court; and (5) The High Court must certify that the case is a fit one for appeal to the Supreme Court. All these five conditions must exist before the certificate can be issued. ( 45 ) UNDER sec. 417 of the Cr. P. C. provision has been made for appeal against an order of acquittal. Prior to the amendment of this section in 1956 it was only open to the State Government to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. After the amendment in 1956 if such an order of acquittal is passed in any case instituted upon complaint and High Court on an application made to it in this behalf by the complainant grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. Under sub-sec. (4) a special period of limitation has been prescribed and under sub-sec. (5) it has been provided as follows:- (5) If in any case the application under sub-sec. (3) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under sub-sec. (1 ). The result is that a refusal to grant special leave to the complainant under sub-sec. (3) of sec. 417 of the Cr. (3) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under sub-sec. (1 ). The result is that a refusal to grant special leave to the complainant under sub-sec. (3) of sec. 417 of the Cr. P. C. not only prevents the complainant from further agitating the question but even the State Government is barred from further agitating the matter and the order of acquittal becomes final so far as the High Court is concerned. ( 46 ) AS to what amounts to a final order within the meaning of Article 134 of the Constitution there are several decisions both of the Federal Court and of the Supreme Court. ( 47 ) IN the case of Kuppuswami Rao v. The King A. I. R. 1949 F. C. 1 a provision of the Government of India Act similar to Article 134 (1) (c) came up for consideration before the Federal Court. It was held by the Federal Court in that case that Final Order must be an order which finally determines the points in dispute and brings the caste to an end. It was also held that to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case but the decision must not keep the matter alive and provide for its trial in the ordinary way. The Federal Court also held that in a criminal case the expressions judgment or final order cannot cover a preliminary or interlocutory order made on a preliminary objection (such as want of sanction under sec. 197 Cr. P. C. ). In that case the Federal Court made it clear the. he words judgment or final order in sec. 205 (1) impart jurisdiction to the Federal Court to entertain appeals both in civil and criminal matters. As the same words give jurisdiction to the Court in both classes of cases it will be improper to construe them in a certain way when applicable to appeals in civil matters and give them a wider meaning when considered in connection with appeals from criminal proceedings. As the same words give jurisdiction to the Court in both classes of cases it will be improper to construe them in a certain way when applicable to appeals in civil matters and give them a wider meaning when considered in connection with appeals from criminal proceedings. In this judgment of the Federal Court Kania C. J. delivering the judgment of the Federal Court approved of the meaning of the expression final Order as given by Lord Esher M. R. in the case of Salaman v. Warner (1891) 1 Q. B 734 The passage from Lord Eshers judgment is in these words:if their decision whichever way it is given will if it stands finally dispose of the matter in dispute I think that for the purposes of these rules it is final. On the other hand if their decision if given in one way will finally dispose of the matter in dispute but if given in the other will allow the action to go on then I think it is not final but interlocutory. Various other decisions were also considered by the Federal Court and it was pointed out that the Judicial Committee of the Privy Council had also adopted the ratio of Lord Eshers judgment in Salamans for the purpose of deciding as to what was meant by the expression final order. In the concluding para of the judgment the Federal Court emphasized that in order to constitute a final order it was not sufficient merely to decide an important or even a vital issue in the case but the decision must not keep the matter alive and provide for its trial in the ordinary way. ( 48 ) IN the case of Seth Premchand Satramdas v. The State of Bihar (1950) S. C. R. 799 the question whether an order passed by the Patna High Court dismissing an application under sec. 21 (3) of the Bihar Sales Tax Act to direct the Board of Revenue to state the case and refer it to the High Court was or was not a final order came up for decision. The Supreme Court held that such an order was an advisory order and stand- ing by itself did not bind or affect the rights of the parties though the ultimate order passed by the Board of Revenue may be based on the opinion expressed by the High Court. The Supreme Court held that such an order was an advisory order and stand- ing by itself did not bind or affect the rights of the parties though the ultimate order passed by the Board of Revenue may be based on the opinion expressed by the High Court. At page 804 of the report Fazl Ali J. who delivered the judgment of the Supreme Court pointed out as follows:it seems to us that the order appealed against in this case cannot be regarded as a final order because it does not of its own force bind or affect the rights of the parties. All that the High Court is required to do under sec 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Boards order is based on what is stated by the High Court to be the correct legal position but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties and the final order in the matter is the order which is passed ultimately by Board of Revenue. ( 49 ) IT is not necessary to set out other decisions on this connection but it may be pointed out that in the case of Jethanand and Sons v. State of U. P. A. I. R. 1961 S. C. 794 it was held by the Supreme Court as follows:an order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties have to be deter- mined the order is not a final order within the meaning of Art. 133. If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties have to be deter- mined the order is not a final order within the meaning of Art. 133. In that case the High Court set aside the orders passed by the Civil Judge and remanded the cases to the Trial Judge with a direction that he do allow the appellants and if need be the respondent to amend their plead- ings and frame all issues that arise out of the pleadings and allow the parties an opportunity to place such evidence as they desire and decide the case on such evidence. It was under these circumstances that the Supreme Court observe d that if after the order the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined the order is not a final order within the meaning of Art. 133 As has been pointed out in A. I. R. 1949 F. C. 1 the principles which are to be applied for the decision whether a particular order is final or not are indentical in civil as well as criminal matters. ( 50 ) IT is clear from the analysis of sec. 417 and particularly sub-secs. (3) and (5) which I have set out hereinabove that as a result of the order passed by my brother Raju on July 17 1963 summarily dismissing the application for special leave under sec. 417 (3) filed by the complainant the rights of the parties were finally determined and that order of acquittal cannot be challenged in any Court unless the appeal is taken to the Supreme Court. As a result of that order passed on July 17 1963 not only was the complainant himself debarred from challenging the order of acquittal passed by the learned Magistrate but the State Government also was debarred from challenging that order of acquittal. Further it may be borne in mind that as a result of the principles of autre fois acquit embodied in sec. 403 of the Cr. P. C. the accused was not liable to be tried again for the same offence; nor on the same facts for any other offence for which a different charge might have been made. Further it may be borne in mind that as a result of the principles of autre fois acquit embodied in sec. 403 of the Cr. P. C. the accused was not liable to be tried again for the same offence; nor on the same facts for any other offence for which a different charge might have been made. Thus it is obvious that this order passed by my learned brother Raju on July 17 1963 so long as it remains in force finally binds the complainant and the State Govern- ment and affects the rights of the parties concerned. Applying the tests laid down by the Supreme Court in my opinion this order passed by my learned brother Raju particularly in the light of the provisions of sec. 417 (5) of the Cr. P. C. amounts to a final order within the meaning of Article 134 (1 ). ( 51 ) THE question then arises whether the proceeding in which this final order was passed by my learned brother Raju was or was not a criminal proceeding In the case of A. W. Meads v. Emperor A. I. R. 1945 F. C. 21 the question as to what is meant by criminal proceedings was considered by the Federal Court and the Federal Court in that case observed as follows:whist it may be proper in certain contexts to include Court-martial proceeding in the phrase criminal proceeding the ordinary primary meaning of the phrase civil or criminal proceedings indicates only the civil or criminal proceedings capable of being instituted under the ordinary law of the land and should not be held to include proceedings under military law unless there be a context which so indicates. There is no such context in sec. 270 or elsewhere in the Constitution Act. The words proceedings civil or criminal in sec. 270 (1) have been used in their ordinary common meaning without any thought or reference to the Army Act the Military Code military offences or proceedings by Courts-martial and do not include military offences under the Army Act and the proceedings by Courts-martial under that Act. In coming to this conclusion the Federal Court relied on two decisions of the House of Lords one in (1921) 2 A. C. 570 and the other in 1943 A. C. 147. 4. In coming to this conclusion the Federal Court relied on two decisions of the House of Lords one in (1921) 2 A. C. 570 and the other in 1943 A. C. 147. 4. ( 52 ) TURNING to the relevant English Cases on this point in a chrono- logical order in the case of Vates v. The Queen 14 Q. B. D. 648 the Court of Appeal was concerned with the question whether criminal infor- mation for libel filed by the order of a Court amounted to a criminal prosecution. Under the News-paper Libel and Registration Act 1881 sec. 3 it was required that no criminal prosecution should be commenced against any proprietor publisher or editor or any person responsible for the publication of a newspaper for any libel published therein without the written fiat or allowance of the Director of Public Prosecutions in England or her Majestys Attorney General in Ireland; and in this context the question arose whether a criminal information for libel filed by the order of a Court amounted to a criminal prosecution. At page 654 of the report Brett M. R. pointed out that sec. 2 of the Act referred to a pro- ceeding and not a criminal prosecution and it was pointed out by Brett M. R. that a proceeding is a very large term and much wider than criminal prosecution and he expressed an opinion that a proceeding by information for libel is a criminal proceeding and that did not make it a criminal prosecution. Thus the Court of Appeal in England held that though such criminal information for libel might be a criminal proceeding it could not called a criminal prosecution. Thus the Court of Appeal in England held that though such criminal information for libel might be a criminal proceeding it could not called a criminal prosecution. ( 53 ) IN the case of Anand v. Home Secretary and Minister of Defence of Royal Netherlands Government (1943) A. C. 147 the House of Lords was concerned with the interpretation of the words criminal cause or matter and the test which was suggested in his speech by a Lord Chancellor was as follows:if the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a Court claiming jurisdiction to do so the matter is criminal at page 162 of the report Lord Wright pointed out in his speech as follows: the principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered is that if the cause or matter is one which if carried to its conclusion might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or fine it is a criminal cause or matter. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court is an order in a criminal cause or matter even though the order taken by itself is neutral in character and right equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country the order is in the eyes of English law for the purpose being considered an order in a criminal cause or matter. At page 164 of the report Lord Porter has pointed out as follows:this does not mean that the matter to be criminal must be criminal through- out. At page 164 of the report Lord Porter has pointed out as follows:this does not mean that the matter to be criminal must be criminal through- out. It is enough if the proceeding in respect of which mandamus was asked is criminal e. g. the recovery of a poor rate is not enforcement by magistrates but warrant of distress is and if a case be started by them as to their right so to enforce it and that case is determined by the High Court no appeal lies. On the same page of the report Lord Porter further observed as follows : the proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge. It may be pointed out that this decision in (1943) A. C. 147 was accepted ? as good law by the Federal Court in A. I. R. (1945) F. C 21 ( 54 ) APPLYING the principles laid down by the different Law Lords in (1943) A. C. 147 to the facts of the present case it is clear that when the complainant applied for special leave to file an appeal under sec. 417 (3) of the Cr. P. C. he was taking a step in a criminal proceeding and if that leave had been granted it would have exposed the accused to a jeopardy and if found guilty in appeal he would have been convicted and sentenced. Under these circumstances to my mind the proceeding before Raju J. in Criminal Application No. 149 of 1963 was a criminal proceeding and as pointed out above the order passed by my learned brother Raju on July 17 1963 was a final order. Thus the first four requirements indicated by me in the earlier part of this judgment are satisfied in the instant case. ( 55 ) THE question then remains whether the present case is a fit case to appeal to the Supreme Court. Our attention was drawn to the decision of the Supreme Court in the case of Chunilal v. Century Spg. Etc. Co. Ltd. 65 Bom. L. R. 276. ( 55 ) THE question then remains whether the present case is a fit case to appeal to the Supreme Court. Our attention was drawn to the decision of the Supreme Court in the case of Chunilal v. Century Spg. Etc. Co. Ltd. 65 Bom. L. R. 276. In that case the Supreme Court was concerned with the question as to what was a substantial question of law within the meaning of Article 133 (1) (a) of the Constitution and not with what is the question of fitness contemplated by Article 134 (1) (c) of the Constitution. In that case it was indicated by the Supreme Court that the test to be applied would be whether the question was of a general public importance or whether it directly and substantially affected the rights of the parties and if so it was an open question in the sense that it was not finally settled by the Supreme Court of India or by the Privy Council or by the Federal Court or was not free from difficulty or called for discussion of alternative views. If the question was settled by the highest Court or the general principles to be applied in determining the question were well settled and there was a mere question of applying those principles or that the plea raised was palpably absurd the question would not be a substan- tial question of law. ( 56 ) IN Baladin v. State of U. P. A. I. R. (1956) S. C. 181 the Supreme Court pointed out the procedure that was to be followed by the High Court in granting a certificate under Article 134 (1) (c) of the Constitution. The question as to what amounts to fitness has not been considered by the Supreme Court in this particular case. ( 57 ) IN State of Punjab v. Shadi Lal A. I. R. (1960) S. C. 397 the question regarding Article 134 (1) (c) of the Constitution was consi- dered. In para 6 of the report Imam J. delivering the judgment of the Supreme Court held that the preliminary objection taken on behalf of the respondent in that appeal that the certificate could not be granted in view of an earlier decision of the Supreme Court must be rejected. In para 6 of the report Imam J. delivering the judgment of the Supreme Court held that the preliminary objection taken on behalf of the respondent in that appeal that the certificate could not be granted in view of an earlier decision of the Supreme Court must be rejected. In that case the High Court had granted a certificate of fitness under Article 134 and the Supreme Court held in the High Court had the power to grant and in the circumstances of that case it had rightly granted such a certificate. ( 58 ) IN none of these three decisions is there any principle laid down as to when a case can be certified by the High Court to be fit for the purpose of granting leave to appeal to the Supreme Court. Necessarily this would depend upon the facts of each case. The Supreme Court has observed in A. I. R. (1960) S. C. 397 that the decision of the High Court of Orissa in A. I. R. (1953) Orissa 160 sets out the principles upon which the Orissa High Court thought fit to grant a certificate. When one turns to the decision in A. I. R. (1953) Orissa 160 it has held as follows:though Art. 134 (1) is wide enough to cover a case of appeal to Supreme Court against acquittal the standard applicable in respect of Art. 134 (1) (c) is not same as indicated in Art. 133 (1) (c) which relates to civil matters notwithstanding that the requirement in the two said sub-clauses (c) is couched in the same terms viz. if the High Court certified that the case is a fit one for appeal to the Supreme Court. . . . . . . . . . But so far as Art. 134 (1) (c) is concerned it is now settled by a series of decisions of all the High Courts in which the question arose after the commence- ment of the new Constitution that the principles which regulate the grant of leave in criminal matters under the said clause are to be the principles which were adopted by the Privy Council as regulating the grant by that tribunal for special leave to appeal to itself. ( 59 ) AS regards the question of the main ground on which the learned Magistrate relied for coming to his conclusion it may be pointed out that there is a conflict of decisions of different High Court as to whether immovable property is or is not within the provisions of secs. 405 and 406 of the I. P. C. It appears to have been held in some cases particularly by the Calcutta High Court in the case of Jugdown Sinha v. Queen-Empress I. L. R 23 Calcutta 372 that criminal breach of trust cannot be committed in respect of immovable property. At page 1040 of the Law of Crimes by Ratanlal and Dhirajlal Thakore 20 Ed. the learned authors have pointed out as follows:- it is submitted that the offence of criminal breach of trust is committed not only by dishonest conversion but also by dishonest use or disposition and there is nothing in the wording of this section to exempt from the definition of criminal breach of trust dishonest use of immovable property by the person entrusted with dominion over it the Madras High Court in the case of Rukmani Ammal v. Muthuswami Reddi 50 M. L. J. 94-27 Cr. L. J. 331 has remarked that there is a general assumption that if a man cannot move a thing away he cannot dishonestly convert it to his own use. In the majority of cases that assumption may be correct but the wording of sec. 405 is very comprehensive and that it would be dangerous to lay down any absolute rule. ( 60 ) APART from the question of decided cases it may be pointed out that there is a clear contrast between the language used in sec. 403 I. P. C. defines and makes punishable the offence of criminal misappro- pration of property and sec. 405 which defines the offence of criminal breach of trust. Under sec. 403 dishonest misappropriation or conversion to ones own use of any movable property has been made punishable whereas under sec. 405 it has been laid down whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property etc. commits the offence of criminal breach of trust. 405 it has been laid down whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property etc. commits the offence of criminal breach of trust. Therefore though it may not be possible to dishonestly misappropriate or convert to ones own use any immovable property a dishonest use or disposal is certainly possible in respect of immovable property and that being the case it is clear that prima facie the learned Magistrate in the Court below appears to have erred in holding as he did on the first point in his judgment regarding the entrustment of the property to accused. As to whether the offence of criminal breach of trust can be committed in respect of immovable property there is no decision of the Privy Council the Federal Court or the Supreme Court regarding this particular aspect of the law and that is in my opinion a sufficient ground for holding that the case is a fit one for appeal to the Supreme Court. . ( 61 ) IT is true that in this particular case the learned Magistrate in the Court below has held as regards points Nos. 2 3 and 4 formulated by him that the accused had taken all care to keep the other parties include- ing the complainant informed about the affairs of the said estate and he has taken care to manage the estate as a prudent man with ordinary common sense would do under the circumstances in which he found the estate. The learned Magistrate has preceded his discussion on points Nos. 2 3 4 and 5 by these words: In view of the finding on point No. 1 in the negative these points will not survive but if findings are necessary on these points it may be noted. . . . and the learned Magistrate has then set out a very inadequate summary of the evidence on the record and the judgment makes it clear that the learned Magistrate was swayed mostly by his conclusion on the first point viz. that entrustment of property as required by sec. 406 of the I. P. C. had not been proved by the complainant. and the learned Magistrate has then set out a very inadequate summary of the evidence on the record and the judgment makes it clear that the learned Magistrate was swayed mostly by his conclusion on the first point viz. that entrustment of property as required by sec. 406 of the I. P. C. had not been proved by the complainant. ( 62 ) IN view of the conclusions which I have set out hereinabove in my opinion all the conditions required by Article 134 (1) (c) of the Constitution are satisfied and this is a fit case in which the certificate contemplated by that clause should be granted. ( 63 ) BAKSHI J. This matter arises out of an application by by the petitioner to this Court praying for a leave to file an appeal under sec. 417 (3) of the Code of Criminal Procedure against an order of acquittal passed by the Judicial Magistrate First Class at Broach acquitting opponent No. 1 original accused of an offence under sec. 406 I. P. C. in Criminal Case No. 1100 of 1959. That application for leave was dismissed by this Court on July 17 1963 whereupon the petitioner prayed for a certificate for leave to appeal to the Supreme Court of India under Article (c) of the Constitution of India. There was a division of opinion between the two learned Judges constituting the Bench which heard the application under Article 134 (1) (c) and hence that matter has been placed for disposal under Clause 36 of the Letters Patent. ( 64 ) THE petitioner in this application is the original complainant who had filed a complaint against opponent No. 1 in the Court of the Judicial Magistrate First Class at Broach alleging that an offence punishable under sec. 406 I. P. C. was committed by the first opponent. The facts of the complaint as they appear from the judgment of the learned First Class Magistrate are that there was an estate known as Amjad Baug Estate situated in the compound of the Vasant Mill on the Mahatma Gandhi Road at Broach. One Khan Bahadur Mervanji Frazer was the original owner of the estate who died intestate leaving a widow three sons and one daughter. One Khan Bahadur Mervanji Frazer was the original owner of the estate who died intestate leaving a widow three sons and one daughter. Letters of Administration for the estate of the deceased were granted to the widow who took possession of all the property carried on its admini- stration and distributed the income of the property amongst the sharers. Thereafter another administrator of the estate was appointed and he retired from his service as the Nazir of the District Court at Surat. There- after one Gulabrai was appointed as the administrator of the estate and he continued till 1950. He used to collect rent of the property of the deceased and distributed the same amongst the sharers according to the orders of the Court. It appears that one of the sons of the deceased mortgaged his share with the father of the original accused and subse- quently assigned his share to him. The original accused then applied for removal of Gulabrai from his position as an administrator and the District Court by its order dated October 16 1950 appointed the complainant and the original accused as joint administrators of the estate. The complainant entrusted the entire managment and administration of the estate to the original accused on his representation that he would collect the income of the estate and distribute the same amongst the sharers and would manage the property well. The accused collected rent and income of the estate and realized large amounts of money by selling some super-structures and did not distribute the income and receipts amongst the sharers but converted the same to his own use and thus misappropriated the same and has thereby committed criminal breach of trust. According to the complaint the original accused was bound to keep a true account of the income of the said property and submit the same before District Court at Surat. The original accused had disposed of the property of the estate the details whereof have been shown in Para. 6 (a) (b) and (c) of the complaint and had realized an amount of Rs. 31501. 00 and had misappropriated that amount. The original accused had according to the complaint not shown that amount in the account produced by him and had thus committed an offence of criminal breach of trust. 6 (a) (b) and (c) of the complaint and had realized an amount of Rs. 31501. 00 and had misappropriated that amount. The original accused had according to the complaint not shown that amount in the account produced by him and had thus committed an offence of criminal breach of trust. ( 65 ) THE defence of the accused was that a false complaint was lodged against him because of certain serious differences of opinion between him and a Solicitor practising at Bombay. According to the accused he had never given false accounts and had kept the sharers in the estate informed of all the important matters relating to the estate. Meetings of the sharers were also held for deliberations and resolutions were passed. The accused denied having misappropriated any amount or having committed any offence. The learned Magistrate who heard the complaint acquitted the accused holding that the term property used in secs. 405 and 406 referred only to movable property; that immovable property could not be brought within the purview of secs. 405 and 406 I. P. C. that the order passed by the District Judge Surat could not be read as creating a trust; that the entrustment of immovable property cannot mean and include entrustment of its income; that a prosecution under sec. 406 I. P. C. was not contem- plated by sec. 317 of the Indian Succession Act and that the complainant had failed to prove entrustment of property as required by sec. 406 I. P. C. or the liability of the accused under sec. 317 of the Indian Succession Act. According to the learned Magistrate in view of the aforesaid con- clusion the rest of the contentions viz whether it was proved that the accused had misappropriated the amount or converted to his own use or used it or disposed of the same and whether the accused had done so dishonestly and whether he had done so in violation of any direction of law prescribing the mode in which the trust was to be discharged and whether the accused wilfully suffered any person to misappropriate the amount dishonestly were unnecessary to be decided. However the learned Magistrate held that the accused had taken care to manage the estate as a prudent man would do under the circumstances. However the learned Magistrate held that the accused had taken care to manage the estate as a prudent man would do under the circumstances. It appears however from the judgment as we shall see later on that the learned Magistrate principally considered the fact while arriving at the judgment that the complainant had failed to prove entrustment of the property within the meaning of and as required by secs. 405 and 406 I. P. C. On this finding of the learned Magistrate the complainant applied to the High Court under sec. 417 (3) of the Code of Criminal Procedure for leave to file an appeal against the order of acquittal passed by the learned Magistrate. This application under sec. 417 (3) was registered as Criminal Application No. 149 of 1963 and was summarily rejected on July 17 1963 Against this order rejecting the aforesaid application the present application for leave to appeal to the Supreme Court was filed by the complainant and this is how the matter came up before the two learned Judges of the High Court between whom a division of opinion has occurred on the question as to whether in a case where the High Court has declined to grant leave to appeal against an acquittal to a private complainant under sec. 417 (3) of the Criminal Procedure Code a certificate can be granted under Article 134 of the Constitution of India and whether if so on the facts v the case it was a fit case for granting a certificate under that Article. ( 66 ) ARTICLE 134 (1) of the Constitution of India read in the context of the questions arising in the present matter requires that before a certicate could be issued the following requirements must be satisefid:-1 There must be an order. 2 It must be a final order. 3. The order must have been passed in a criminal proceeding. 4 The case must be a fit one for appeal to the Supreme Court. There can be no doubt about the fact that a refusal to grant special leave to a complainant under sec. 417 (3) of the Criminal Procedure Code is an order passed by the High Court. 3. The order must have been passed in a criminal proceeding. 4 The case must be a fit one for appeal to the Supreme Court. There can be no doubt about the fact that a refusal to grant special leave to a complainant under sec. 417 (3) of the Criminal Procedure Code is an order passed by the High Court. As stated in Halsburys Laws of England Third edition Volume 22 at page 740 the term order in its wider sense may be said to include any decision given by a court on a question or questions all issue between the parties to a proceeding properly before the Court. The decision in a matter arising under sec. 417 (3) of the. Cr. Pro. Code is a decision which prevents the complainant from challenging the order of acquittal of the accused and all the rights of the complainant relating to the complaint filed by him are undoubtedly concluded. The making of an application under sec. 417 (3) appears to be a stage introduced by the Legislature in a proceedi ng after a trial which resulted in the acquittal of the accused. Mr. Bhatt appearing on behalf of opponent No. 1 has also not seriously disputed the fact that the refusal to grant special leave under sec. 417 (3) of the Criminal Procedure Code was an order within the meaning of Article 134 (1) of the Constitution of India. What has been seriously disputed by Mr. Bhatt is that it is not a final order. ( 67 ) IN the same volume of Halsburys Laws of England we find the following passage as regards the terms final judgment or order. In general a judgment or order which determines the principal matter in question is termed final. A final judgment has been defined as a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established or as a judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour either of the plaintiff or of the defendant. An order made in chambers by consent ordering that the action be dismissed and the plaintiffs pay to the defendants their taxed costs is final and an order dismissing an originating summons is a final order. An order made in chambers by consent ordering that the action be dismissed and the plaintiffs pay to the defendants their taxed costs is final and an order dismissing an originating summons is a final order. A final order is none the less final by reason that it is subject to appeal and a judgment may be final although it directs inquiries or deals with costs only or is made on an interlocutory application or reserves liberty to apply. In the case of V. M. Abdul Rahman and others v. D. K Cassim and Sons- and another A. I. R. 1933 Privy Council 58 a person brought a suit for damages but became insolvent during the pendency of the suit. The suit was dismissed for the failure of the Official Assignee to furnish security. The appellate Court however held that the claim being one for damages did not vest in the Official Assignee and remanded the case for trial on merits. On these facts it was held that although the order of remand decided an important and even a vital issue in the case it left the suit alive and provided for its trial in the ordinary way and that therefore no appeal lay against it under sec. 109 (a) of the Civil Procedure Code. In the course of judgment it was observed at page 60 that lord Cave in delivering the judgment of the Board laid down as the result of an examination of certain cases decided in the English Courts that the test of finality is whether the order finally disposes of the rights of the parties and he held that the order then under appeal did not finally dispose of those rights but left them to be determined by the Courts in the ordinary way. It should be noted that the appellate Court in India was of opinion that the order it had made went to the root of the suit namely the jurisdiction of the Court to entertain it and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If after the order the suit is still a live suit in which the rights of the parties have still to bee determined no appeal lies against it under sec. But this was not sufficient. The finality must be a finality in relation to the suit. If after the order the suit is still a live suit in which the rights of the parties have still to bee determined no appeal lies against it under sec. 109 (a) of the Code. The test of finality therefore as can be seen from the aforesaid decision is whether the order finally disposes of the rights of the parties and whether after the order the suit is a live suit in which the rights have still to be deter- mined. In S. Kppuuswami v. The King A. I. R. (36) 1949 Federal Court 1 proceedings were launched before a Magistrate under secs. 120b 120 468 197 409 and 477a I. P. C. and an objection was raised in those proceedings that the consent of His Excellency the Governor was necessary under sec. 270 of India Act which was not obtained. This contention was upheld by the Magistrate who was trying the casein respet of charges under secs. 409 420 197 and 477a. The second objection that was taken was that the proceedings were against sec. 197 Criminal Procedure Code read with sec. 271 Government of India Act 1935 as the accused was appointed to perform the duties of a motor licensing officer and was a Government servant whose services could not be dispensed with by the District Collector. The matter again came up before the Magistrate who saw no ground for reconsidering the order already passed by him A criminal revision application was thereupon filed which was dismissed by the High Court and the result of that order was that the proceedings would have to go on before the Magistrate. The High Court granted a certificate under sec. 205 (1) of the Government of India Act 1935 and it become necessary to consider the question whether the appeal was really from a judgment decree or final order of the High Court. At page 4 of the judgment it was observed that our attention was called to Cl. 39 Letters Patent of the High Courts of Calcutta Bombay and Madras which provides for appeals to His Majesty-in-Council from any final judgment decree or order and urged that in the absence of the qualifying word judgment in sec. At page 4 of the judgment it was observed that our attention was called to Cl. 39 Letters Patent of the High Courts of Calcutta Bombay and Madras which provides for appeals to His Majesty-in-Council from any final judgment decree or order and urged that in the absence of the qualifying word judgment in sec. 205 (1) Constitution Act must be held to include a preliminary or interlocutory judgment and that the order now under appeal fell under that category. We are unable to accede to this view. In our opinion the term judgment itself indicates a judicial decision given on the merits of the dispute brought before the Court. In a criminal case it cannot cover a preliminary or inter- locutory order. At page 5 it was further observed that it was argued on behalf of the appellant that the words judgment or final order should be given a wider interpretation so as to enable the Court to entertain appeals like the present in criminal matters in any event. We are unable to accept this contention. The words are used in sec. 205 (1) Constitution Act and impart jurisdic- tion to the Federal Court to entertain appeals both in civil and criminal matters. As the same words give jurisdiction to the Court in both classes of cases it will be improper to construe them in a certain way when applicable to appeals in civil matters and give them a wider meaning when considered in connection with appeals from criminal proceedings. The words judgment and final order in connection with civil appeals have received a definith judicial interpretation. In connection with civil appeals to this Court therefore that interpretation has to be accepted If so the same interpretation has to be accepted in case of appeals from criminal proceedings brought to this Court under sec. 205 (1) Constitution Act. In our on this argument of the appellant is against all well-recognised canons of construction. As regards the question whether in that criminal case the order was a final order it was observed that the question then is whether in the present criminal case the order is a judg- ment decree or final order of the High Court? It is clearly not a decree. As regards the question whether in that criminal case the order was a final order it was observed that the question then is whether in the present criminal case the order is a judg- ment decree or final order of the High Court? It is clearly not a decree. It is also not a judgment as it is only an interlocutory order made on a preliminary objection in the course of a criminal trial It is also not a final order as the order is not on a point which decided either way would terminate the matter before the Court finally. In the words of Sir George Lowndes to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case but the decision must not keep the matter alive and provide for its trial in the ordinary way. It is therefore clear that the order made on the criminal revision application by the Madras High Court is not a final order of judgment within the meaning of sec 205 (1) Constitution Act. Indeed if judgment were to mean or include an interlocutory order the words final order in sec. 205 (1) Government of India Act 1935 will be superfluous. In the judgment of the Federal Court referred to above the case of Salaman v. Warner (1891) I. Q. B. 734 was referred to. The relevant passage in the judgment of Lord Esher is at page 735:if their decision whichever way it is given will if it stands finally dispose of the matter in dispute I think that for the purposes of these rules it is final on the other hand if their decision if given in one way will finally dispose of the matter indispute but if given in the other will allow the action to go on then I think it is not final but interlocutory. This was a case in which the defendants raised by their defence the point of law that the statement of claim did not disclose any cause of action A Judge at Chambers ordered that the point should be set down for argument and disposed of before the trial. It accordingly came on before the Divisional Court who after argument ordered that the action should be dismissed with costs. It accordingly came on before the Divisional Court who after argument ordered that the action should be dismissed with costs. Another decision that was referred to in the course of the arguments was in the case of Seth Premchand Satramdas v. The State of Bihar 1950 S. C. R. 799 where the decision was whether an order passed dismissing an application-under sec. 21 (3) of the Bihar Sales Tax Act to direct the Board of Revenue Bihar to state a case and refer it to the High Court was or was not a final order. It was held by the Supreme Court that such an order was an advisory order and did not bind or affect the rights of the parties. At page 804 it was observed that:-IN order to attract the provisions of this clause it is necessary to show firstly that the order under appeal is a final order and secondly that it was passed in the exercise of the original or appellate jurisdiction of the High Court. The second requirement clearly follows from the concluding part of the clause. It seems to us that the order appealed against in this case. cannot be regarded as a final order because it does not of its own force bind or affect the rights of the parties. All that the High Court is required to do under sec 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Boards order is based on what is stated by the High Court to be the correct legal position but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties and the final order in the matter is the order which is passed ultimately by the Board of Revenue. Another case that was referred to was the case of M/s Jethanand and Sons v. State of Uttar Pradesh A. I. R. 1961 S. C. 794. Another case that was referred to was the case of M/s Jethanand and Sons v. State of Uttar Pradesh A. I. R. 1961 S. C. 794. In that case the High Court remanded the case to the Civil Judge with a direction that he should allow the appellants and if need be the respondent to amend their pleadings and frame issues that would arise out of the pleadings and allow the parties an opportunity to lead evidence and then to decide the case on such evidence. On these facts it was observed at page 796 of the judgment that in our view the order remanding the cases under sec. 151 of the Civil Procedure re Code is not a judgment decree or final order within the meaning of Art. 133 of the Constitution. By its order the High Court did not decide any question relating to the rights of the parties to the dispute The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appe- llants for setting aside the awards Such an order remanding the cases for re-trial is not a final order within the meaning of Art. 133 (1) (c ). An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined the order is not a final order within the meaning of Art. 133. ( 68 ) IN the light of the aforesaid principles let us examine the provisions of sec. 417 of the Criminal Procedure Code and the nature of the order that could be passed under sub-clause 3 of sec. 417. Sec. 417 is included in Chapter XXI of the Code of Criminal Procedure which relates to appeals. That chapter provides for appeals against a judgment or order of a Criminal Court in certain cases. In the case of an acquittal sec. 417 provides that subject to the provisions of sub-sec. (5) the State Government may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Sub-section (3) of sec. In the case of an acquittal sec. 417 provides that subject to the provisions of sub-sec. (5) the State Government may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Sub-section (3) of sec. 417 provides that if such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. Sub-sec. (5) of sec. 417 further provides that if in any case the application under sub-sec. (3) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under sub-sec. (1 ). It would thus appear on a reading of sec. 417 that the State Government can file an appeal against an acquittal without obtaining any leave from the High Court for filing such appeal; whereas if such an appeal has to be-filed in any case instituted upon complaint a special leave to appeal from the order of acquittal has to be obtained before the complainant can present such an appeal to the High Court. It would thus appear that on an order summarily dismissing the application for special leave under sec. 417 filed by the complainant the right of the complainant relating to his complaint would be finally determined and the order of acquittal could never be challenged in any Court unless the appeal was then to the Supreme Court. But that would not be the only effect of such an order rejecting the application for special leave under sec. 417 (3 ). As a result of the order dismissing the application for special leave under sec. 417 (3) not only the complainant himself would be debarred from challenging the order of acquittal but the State Government also would be debarred from challenging the order of acquittal. This would be as a result of the pro- visions contained in sub-sec. (5) of sec 417 of the Criminal Procedure Code. On account of the provisions contained in sec. 403 Cri. Pro. This would be as a result of the pro- visions contained in sub-sec. (5) of sec 417 of the Criminal Procedure Code. On account of the provisions contained in sec. 403 Cri. Pro. Code the accused would not be liable to be tried again for the same offence or on the same facts for any other offence. It is thus abundantly clear that the order passed by the High Court summarily rejecting the application for special leave under sec. 417 (3) filed by the complainant finally binds the complainant as well as the State Government and therefore affects the rights of the parties. The order passed under sec. 417 (3) becomes final and conclusive not only in the proceedings under that section but in respect of the subject matter of the complaint and no fresh proceedings in that matter can lie after the application under sec. 417 (3) was disposed of. There- fore the disposal of the application under sec. 417 (3) by Raju J. disposes of finally the subject matter of the complaint and therefore the rights of the parties relating thereto and the complaint and all the incidental pro- ceedings do not survive after the order which puts the case to an end. The order therefore that has been passed dismissing the application for special leave under sec. 417 (3) amounts to a final order within the mean- ing of Article 134 (1) of the Constitution of India. ( 69 ) THE next question that would now arise for consideration is whether the proceedings taken under sec. 417 (3) of the Criminal Procedure Code are criminal proceedings and whether an order passed therein could be considered as an order made in a criminal proceeding. The word proceeding does not appear to have been defined in the Criminal Procedure Code. Sub-clause (1) (m) of sec. 4 defines a Judicial Proceeding as including any proceeding in the course of which evidence is or may be legally taken on oath. In Shorter Oxford English Dictionary at page 1590 one of the definitions of a proceeding is as under:the instituting or carrying on of an action at law; a legal action or process; any act done by authority of a court of law; any step taken in a cause by either party. It has not been disputed by Mr. Bhatt that any action taken under sec. It has not been disputed by Mr. Bhatt that any action taken under sec. 417 would amount to a proceeding but what has been disputed by Mr. Bhatt is that such a proceeding is not a criminal proceeding within the meaning of Article 134 (1 ). In the case of Anand v. Home Secretary and Minister of Defence of Royal Netherlands Government 1943 A. C. 147 the House of Lords was dealing with a question regarding the interpretation of the words criminal cause or matter and in the speech by Lord Chancellor Viscount it was observed that if the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so the matter is criminal. In his speech at page 162 of the report Lord Wright has pointed out that the principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered is that if the cause or matter is one which if carried to its conclusion might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or fine it is a criminal cause or matter. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English Court is an order in a criminal cause or matter even though the order taken by itself is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country the order is in the eyes of English law for the purposes being considered an order in a criminal cause or matter. At page 164 of the report it has been observed by Lord Porter that this does not mean that the matter to be criminal must be criminal throughout. At page 164 of the report it has been observed by Lord Porter that this does not mean that the matter to be criminal must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal e. g. the recovery of a poor rate is not of itself a criminal matter but its enforce ment by magistrates by warrant of distress is and if a case be stated by them as to their right so to enforce it and that case determined by the High Court no appeal lies. On the same page it has been observed that the proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding but it need not itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the Magistrate in jeopardy a criminal charge. In the case of A. W. Meads v. Emperor A. I. R. 1945 Federal Court 21 the appellant was ordered to be tried by a Field General Court-martial. He was in due course so tried and was convicted in respect of the two offences charged under sec. 17 Arms Act and was sentenced. The appellent thereupon filed a petition in the High Court under sec. 491 Criminal P. C. and the important point raised on the hearing of that petition before the High Court was that the act complained of was committed by the appellant in the execution or purported execution of his duty a servant of the Crown and that accordingly under sec. 270 (1) Government of India Act 1935 the Court-martial proceedings could not legally and properly be instituted against him without the previous consent of the Governor General in his discretion. The question therefore raised was whether the Court-martial proceedings in question were criminal proceedings within the meaning of sec. 270 (1) Government of India Act 1935 In the petition under sec. 491 of the Code of Criminal Procedure the High Court decided that the Court-martial proceedings in question were not criminal proceed- ings within the meaning of sec. 270 (1) and accordingly the petition was dismissed. But a certificate under sec. 205 (1) Constitution Act was granted in respect of the question raised in regard to sec. 491 of the Code of Criminal Procedure the High Court decided that the Court-martial proceedings in question were not criminal proceed- ings within the meaning of sec. 270 (1) and accordingly the petition was dismissed. But a certificate under sec. 205 (1) Constitution Act was granted in respect of the question raised in regard to sec. 270 (1) and from that order the appellant preferred an appeal before the Federal Court. The appeal was dismissed by the Federal Court and the relevant observations occur at page 23 of the judgment as under: whilst as indicated above it may be proper in certain context to include Court martial proceedings in the phrase criminal proceedings in our opinion the ordinary person who uses the phrase civil or criminal proceedings usually intends only to indicate the ordinary civil and criminal proceedings which can be taken in accordance with the ordinary law of the land and does not have in mind the special and peculiar code of Military Law applicable only to the limited classes subject to it and the military offences created by that code. In other words in our judgment the ordinary primary meaning of the phrase civil or criminal proceedings indicates only the civil or criminal proceedings capable of being instituted under the ordinary law of the land and should not be held to include proceedings under military law unless there be a context which so indicates. If the application made by the complainant for special leave to file an appeal under sec. 417 (3) was granted it would undoubtedly expose the accused to a jeopardy and would have led to proceedings in which if found guilty he would have been convicted and sentenced. The application under sec. 417 (3) would involve a consideration of some charge of crime and of some offence which was preferred before a Court empowered to impose punishment for the offence. ( 70 ) MR. Bhatt appearing on behalf of opponent No. 1 had urged that an order passed in a proceeding under sec. 417 (3) was not a final order and that no leave could be granted to appeal to the Supreme Court. Mr. Bhatt referred to a decision of the Supreme Court ill Criminal Appeal No. 21 of 1960. ( 70 ) MR. Bhatt appearing on behalf of opponent No. 1 had urged that an order passed in a proceeding under sec. 417 (3) was not a final order and that no leave could be granted to appeal to the Supreme Court. Mr. Bhatt referred to a decision of the Supreme Court ill Criminal Appeal No. 21 of 1960. That was a case in which an order of conviction was set aside in appeal by the High Court and the prosecutor in respect of the offence was the State and not a private complainant. ( 71 ) THE aforesaid discussion leads to the conclusion that the proceeding before the High Court in Criminal Application No. 149 of 1963 was a criminal proceeding and the order passed therein was a final order. The question that would now arise for consideration is whether the present case is a fit case to appeal to the Supreme Court. Mr. Bhatts argument was that this was not a fit case because there was no substantial question of law that arose in the case as the learned Magistrate had decided the case on its facts. Reference was made to the case of State Government Madhya Pradesh v. Ramkrishna Ganpat Rao Limsey A. I. R. 1954 S. C. 20 which has been referred to in a subsequent case of the Supreme Court in the case of State of Punjab v. Shadi Lal A. I. R. 1960 S. C. 397. At page 399 the relevant observations are: a preliminary objection was taken on behalf of the respondent that the certi- ficate could not be granted in view of what was observed by this Court in the case of State Govt. Madhya Pradesh v. Ramkrishna Ganpat Rao Limsey AIR 1954 SC20. It was observed by this Court: As above stated this appeal is before us by special leave. Madhya Pradesh v. Ramkrishna Ganpat Rao Limsey AIR 1954 SC20. It was observed by this Court: As above stated this appeal is before us by special leave. Article 13 of the Constitution permits an appeal to this 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 has on appeal reversed an order of acquittal of an accused person and sentenced him to death It does not provide for an appeal from a judgment final order or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal. In other words there is no provision in the constitution corresponding to see. 417 Criminal P. C. and such an order is final subject however to the overriding powers vested in this Court by Art. 136 of the Constitution. In support of this objection reliance was also placed on the case of State of orissa v. Minaketan AIR 1953 Ori 160 and on the case of Superintendent and Remembrancer of Legal Affairs Government of West Bengal v. Anwar Ali Sarkar. 59 Cal. WN 1042: ( AIR 1956 Cal. 316 ). The decision in the latter case is based on the observations of this Court in Ramkrishna Ganpat Rao Limseys case AIR 1954 SC 20 The decision of the High Court of Orissa in the case cited sets out the principles upon which that Court would grant a certificate. So far as the observation of this Court in the case of AIR 1954 SC 20 (supra) is concerned it is to be observed that this Court was not considering Clause (c) of Art. 134 (1) of the Constitution. The observation made in that case was with reference to Clause (a) of Art 134 (1) of the Constitution apparently with a view to showing that in an appeal by special leave by the State against a judgment of acquittal the State could not claim as of right to be heard on questions of fact. The observation made in that case was with reference to Clause (a) of Art 134 (1) of the Constitution apparently with a view to showing that in an appeal by special leave by the State against a judgment of acquittal the State could not claim as of right to be heard on questions of fact. The decision of this Court did not purport to state that a certificate could not be granted under Clause (c) of Art 134 (1) in a case where a High Court affirmed an acquittal and yet was of the opinion that a substan- tial question of law was involved particularly where the law declared by the Supreme Court was in conflict with the decision of the High Court on that very question. In our opinion the preliminary objection raised is without foundation and must be rejected. It may be pointed out that even if the High Court could not have granted a certificate this Court always has the power to grant special leave in an appropriate case. There can be no question in the present case that this Court would have granted special leave even if the High Court had refused to grant a certificate or was not in a position to grant one. From that point of view the preliminary objec- tion raised could not stand in the way of this Court hearing the present appeal if we granted special leave. It is however unnecessary to say anything further since in our opinion the preliminary objection fails on the ground that the decision of this Court on which reliance is being placed is no authority for the proposition that the High Court could not have granted the certificate in the circumstances of the present case. In our opinion the High Court had the power to grant the certificate under Art. 134 (1) (c) of the Constitution and in the circumstances of the present case it rightly granted such a certificate. ( 72 ) THE question therefore whether the case would be a fit one for appeal to the Supreme Court would require to be decided with reference to the facts and the substantial questions of law arising in a particular case. If we look to Para. 5 of the judgment of the learned Magistrate in Criminal Case No. 1100 of 1959 reference is made to the points that arose for determination in the case. If we look to Para. 5 of the judgment of the learned Magistrate in Criminal Case No. 1100 of 1959 reference is made to the points that arose for determination in the case. The points for determination mentioned in that paragraph are as under :- (1) Does complainant prove that accused was entrusted with pro- perty or with dominion over property ? (2) If so is it proved that accused misappropriated it or converted it to his own use or used it or disposed of the same ? (3) If so is it proved that he did so dishonestly? (4) If so is it proved that he did so in violation of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract express or implied which he has made touching the discharge of such trust ? (5) Is it proved that accused wilfully suffered any person to do so as in 2 3 4 Part I or II ? (6) What order ?para 6 of the judgment gives the finding on the aforesaid points for deter- mination as under: (1) No. (2) Does not survive. (3) Does not survive. (4) Does not survive (5) No. (6) As per order. ( 73 ) THE main grounds as regards point No. 1 are contained in para- graphs 7 and 8 of the judgment which may be quoted: it may be noted at the outset that it is not the case of the complainant that accused was entrusted property as contemplated by secs. 405 406 of the Indian Penal Code. The illustrations to the former section all indicate that by the term property used in the said two sections movable property is meant and that the sections do not contemplate entrustment of immovable property. The definition of the offence of criminal breach of trust given in sec. 405 Indian Penal Code makes use of the terms used in the offence under sec. 403 I. P. C. viz. dishonestly misappropriates or converts to his own use. These terms are used in sec. 403 I. P. C. with respect to movable property and hence it can be safely inferred having regard to the case law given in the commentary of secs. 405 406 I. P. Code that immovable property is excep- ted from the purview of the said sections. dishonestly misappropriates or converts to his own use. These terms are used in sec. 403 I. P. C. with respect to movable property and hence it can be safely inferred having regard to the case law given in the commentary of secs. 405 406 I. P. Code that immovable property is excep- ted from the purview of the said sections. Out of the numerous authorities cited by the learned Advocate for the complainant there is not a single which deals with the entrustment of immovable property the misappropriation or conversion of the income of which may have been punished under sec. 406 of the Indian Penal Code. Learned Advocate for the complainant has relied upon the letter Exh. 43 written by the accused to the partner owners of the estate in question as the document creating entrustment but there is no act of the partner-owners of the said property having entrusted the property immovable or movable to the accused by a definite act on their part orally or in writing. If the letter Exh. 43 is to be construed as a deed of enstrustment it is an entrustment by the accused unto himself and hence he is answerable for the same to himself and none else. Learned Advocate for the complainant has urged that this document must be read with the application Exh. 39 made by the accused for appointing him trustee or manager of the said estate to the District Court Surat and the order of that Court (Exh. 38) appointing him and complainant the joint administrators of the said estate. But reading these three documents together does not advance the case of the complainant any further. The said three documents cannot be read as creating a trust in the accused at the hands of the complainant or the other partner owners of the said property within the meaning of sec. 405 or 406 Indian Penal Code. The entrustment of the immovable property of the said estate can never mean entrustment of its income because the same could not be in existence on the day of the alleged entrustment of the immovable property. 405 or 406 Indian Penal Code. The entrustment of the immovable property of the said estate can never mean entrustment of its income because the same could not be in existence on the day of the alleged entrustment of the immovable property. There is no law or authority cited by learned advocate for the complainant in support of his case that entrustment of the immovable property includes the entrustment of its further income or profits and as such covered by the provisions of secs 405 406 of the Indian Penal Code. 8 Learned Advocate for the complainant has also argued that accused having been appointed joint administrator of the said estate he is bound to exhibit inven- tory and account as required by the provisions of sec. 317 of the Indian Succession Act. But learned advocate has over-looked the fact that his client is equally under the obligation to render accounts under the said section. How could he shirk this responsibility by giving power of attorney to the accused when the District Court had appointed him a joint administrator. His act in throwing responsibility at the accused in the face of the order Exh. 38 of the District Court amounts to disregard of Courts order for which he is certainly answerable. But even assuming that accused was under an obligation to render account and do acts enumerated in sec. 317 of the said Act and he fails to do so then he is liable to prosecution for offences under sec. 176 or sec. 193 as the breach may be (vide sub-secs. (3) (4) of sec 317 of the said Act ). A prosecution u. s. 406 I. P. C. is not contemplated by sec. 317 of the said Act. In this view of the case also the present prosecution is ill-thought of and does not lie. I therefore conclude that complainant has failed to prove entrustment of property as required by sec. 406 of Indian Penal Code or liability of the accused under sec. 317 of the Indian Succession Act. This point is therefore answered in the negative. The above passage from the judgment would also show that the learned Magistrate thought that by the term property used in secs. 405 and 406 I. P. C. what was meant was movable property and that the section did not contemplate entrustment of immovable property. 317 of the Indian Succession Act. This point is therefore answered in the negative. The above passage from the judgment would also show that the learned Magistrate thought that by the term property used in secs. 405 and 406 I. P. C. what was meant was movable property and that the section did not contemplate entrustment of immovable property. The learned Magis- trate was of the view that immovable property was excepted from the purview of the two sections. The learned Magistrate further considered the fact whether the income or proceeds of immovable property if mis- appropriated would be covered by the section. As regards the question relating to the main ground on which the learned Magistrate relied there is a conflict of decisions of different High Courts as to whether immov- able property is or is not covered within the provisions of secs. 405 and 406 I. P. C. It is possible to urge that under sec. 403 I. P. C. dishonest misappropriation or conversion to ones own use of any movable property has been made punishable; whereas under sec. 405 I. P. C. what has been provided is that whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriated or converts to his own use that property or dishonestly uses or disposes of that property commits the offence of criminal breach of trust. It is thus possible to argue that though it may not be possible to dishonestly mis- appropriate or convert to ones own use any immovable property a dishonest use or disposal is possible in respect of immovable property. There is no decision of the Privy Council or the Supreme Court on the question whether the offence of criminal breach of trust can be committed in respect of immovable property. It also appears that there was an order of appointment of joint administrators and the accused was alleged to be one of the joint administrators. It also appears that it would be possible to argue that there was a power of attorney given by the complainant in favour of the accused who had thereby obtained the sole dominion over the property and that therefore he could be said either to have been entrusted the property or to have domi- nion over it. It was also urged by the learned advocate of the petitioner that Ex. It was also urged by the learned advocate of the petitioner that Ex. 38 was an order of appointment of joint administrators and that the learned Magistrate had lost sight of the fact that the accused was a joint administrator. It was also urged that the property would vest under sec. 211 of the Indian Succession Act and there would be also a duty to account under sec. 19 of the Indian Trust Act. It appears that these are points of law which go to the root of the matter and that the decision in the case would depend on how these important points were decided. It would appear from the judgment of the learned Magistrate that according to him in view of his finding on point No. 1 in the negative the rest of the points included by him in the points for determination would not survive. On reading the judgment as a whole it appears that the decision of the learned Magistrate on point No. 1 has mainly influenced the rest of his judgment. It is true that the learned Magistrate has held all regards points Nos. 2 3 and 4 formulated by him that the accused had taken care to keep the other sharers informed about the affairs of estate and had taken care to manage the estate as a prudent man with ordinary common sense. The discussion of the facts and evidence on these points does not appear to bee adequate and judgment makes it clear that the decision was mainly influenced by the conclusion of the learned Magistrate on the first point that the entrustment of property as required by sec. 406 I. P. C. had not been proved by the complainant. There is no adequate discussion of the evidence on record including the evidence of the complainant and the evidence relating to the fact of accounts having been asked for from the accused and the effect of the order of appointment of the original accused as a joint administrator the fact of execution of power of attorney in his favour by the complainant the question of accountability as an administrator and the effect of the alleged neglect to give and produce accounts relating to the disposal of the disputed property. ( 74 ) THERE are thus in this matter important and substantial questions of law which go to the root of the matter and affect the very foundation of the judgment of the learned Magistrate. In my opinion therefore the order passed by the High Court in the matter of granting leave to appeal against an order of acquittal under sub-sec. (3) of sec. 417 is a final order in criminal proceeding and therefore where the High Court has declined to grant leave to appeal against the acquittal to a private complainant under sec. 417 (3) Cri. Pro. Code a certificate can be granted under sec. 134 (1) (c) of the Constitution of India For the reasons already set out this is a fit case under Article 134 (1) (c) of the Constitution of India to certify that the case is a fit one for appeal to the Supreme Court. Leave to appeal granted. .