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1997 DIGILAW 40 (MAD)

Jose Joseph v. Syndicate Bank

1997-01-15

J.B.KOSHY, T.V.RAMAKRISHNAN

body1997
JUDGMENT Ramakrishnan, J.: At the time when the appeal came up for admission, the maintainability of the appeal before this Court was challenged by the learned counsel for the respondent who has entered appearance on receipt of notice in the petition for condonation of delay. It was submitted that the appeal ought to have been filed before the District Court as per the provisions contained in Sec.341 of the Code of Criminal Procedure read along with Sec.195, Crl.P.C. As the objection relates to the maintainability of the appeal, we have heard the counsel on both sides on that question before considering the question of admissibility of the appeal. 2. The order challenged in this appeal is one passed under Sec.340, Crl.P.C. directing a complaint to be forwarded to the concerned First Class Magistrate Court. The appellants are aggrieved by the said order and have preferred this appeal under Sec.341, Crl.P.C. The appellants have a right of appeal against, the order is not in dispute. The only question to be considered is whether the appeal to the preferred under Sec.341, Crl.P.C. will lie before this Court or before the District Court, Thalassery. 3. Sec.341, Crl.P.C. reads thus: “341. Appeal: (1) Any person on whose application any court other than a High Court has refused to make a complaint under Sub-sec.(1) or Sub-sec.(2) of Sec.340 , or against whom such a complaint has been made by such court, may appeal to the court to which such former court is subordinate within the meaning of Sub-sec.(4) of Sec. 195 , and the superior court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former court might have made under Sec.340, and if it makes such complaint, the provisions of that section shall apply accordingly.” As per the above provision, the appellants have to prefer their appeal to the court to which me court has passed the impugned order is subordinate with in the meaning of Sub-sec.(4) of Sec. 195, Crl.P.C. Sub-sec.(4) of Sec.195 is in the following terms: “195. Prosecution/or contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence: (4) For me purposes of clause (b) of Sub-sec.(f) a Court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court, or in the case of a civil court from whose decrees no appeal ordinarily lie, to me principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situate: Provided that- (a) where appeals lie to more than one court, the appellate court of inferior jurisdiction shall be the court to which such court shall be deemed to be subordinate; (b) omitted.” Going by the provisions contained in Sub-sec.(4) of Sec.195 the procedure to be followed to determine the proper court to which appeal is to be preferred under Sec.341 , Crl.P.C. is: (i) to find out the court to which appeals ordinarily lie from die appealable decrees or sentences of the court which has passed the order under Sec.340 and (ii) in the case of civil court from whose decrees no appeal ordinarily lies, to find out the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction the court which has passed the order is situate. The provision in clause (a) to the proviso declares that where appeals lie to more man one court, the appellate court of inferior jurisdiction shall be the court to which the Court which has passed order shall be deemed to be subordinate to. In this case, die court which has passed the order is the Sub Court and as such it is a civil court from whose decrees appeals ordinarily lie. So, much so, we are concerned only with the first part of Sub-sec.(4) of Sec.195, Crl.P.C. in this case. In that view, it is necessary to find out the court to which appeals ordinarily lie from the appealable decrees passed by the Sub Court, Payyannur. 4. So, much so, we are concerned only with the first part of Sub-sec.(4) of Sec.195, Crl.P.C. in this case. In that view, it is necessary to find out the court to which appeals ordinarily lie from the appealable decrees passed by the Sub Court, Payyannur. 4. In this connection, we may usefully note the guiding principles laid down by the Supreme Court in Kuldip Singh v. The State of Punjab Kuldip Singh v. The State of Punjab , A.I.R. 1956 S.C. 391: 1956 S.C.J. 287: 1956 S.C.R. 125: 1956 Crl.L.J. 781: 1956 S.C.C. 455 for me purpose of determining the court to which appeals ordinarily lie though the question considered in that decision was with reference to Secs.476-A and 476-B , Crl.P.C. read along with Sec.195(3), Crl.P.C. 1898. The Supreme Court stated the principles thus: “In determining the court or courts to which an appeal will ordinarily lie, it has to be seen which court or courts entertain appeals from that class of tribunal in the ordinary way apart from special notifications or law that life the matter out of the general class.” 5. The Act which deals with establishment and constitution of subordinate civil courts and their jurisdiction and powers is the Civil Courts Act, 1957 (for short, “the Act”). Secs.12 and 13(1) excluding the proviso alone are relevant in this connection and they read thus: “12. Appeals from decrees and orders of District Court or Subordinate Judge's Court: Save as provided in Sec. 13 regular and special appeals shall, when such appeals are allowed by law, lie ‘from the decrees or orders of a District Court or a Subordinate Judge's Court to the High Court. Sec. 13. Appellate jurisdiction of District Court and Subordinate Judge's Court: Appeals from the decrees and order of a Munsif's Court and where the amount, or value of the subject matter of the suit does not exceed Twenty-Five thousand rupees from the original decrees and orders of the Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court.” 6. Interpreting the above two provisions a Full Bench of this Court in Palakkattumala Devasom v. Pylee Palakkattumala Devasom v. Pylee , 1969 K.L.T. 275 (KB.) has held that appeals from decrees or orders of a Subordinate Judge's Court lie to the High Court except in cases appeals lie to the District Court as provided in Sec.13 of the Act. Thus, unlike in the case of District Court, the appeals from the decrees or orders of a Subordinate Judge's Court in suits lie to District Court as provided in Sec. 13 of the Act and in all other cases to the High Court. In other words, in the case of suits depending upon the valuation, the appeal will lie to the District Court or the High Court. Appeals in all other proceedings other than suits from the District Court and the Sub Court lie to the High Court in the light of Sec.12 of the Act. This is in our view is the interpretation placed by the Full Bench on Secs.12 and 13 of the Act with which we respectfully agree. If that be so, applying the test prescribed by the Supreme Court for determining the question regarding the Court to which appeals ordinarily lie, it has to be held that in the case of sub courts, the District Court and the High Court are the Courts to which appeals ordinarily lie. Since there are two courts to which appeals lie ordinarily from the sub Court, the provision in the proviso to Sec. 195 (4) will also have to be applied to find out the particular Court to which the Sub Court is subordinate for the purpose of Sec. 195(1)(b). The contention of the learned counsel for the appellant that ordinarily appeals lie from all appealable decrees from the Sub Court to the High Court and the appeals to be filed before the District Court under Sec.13 of the Act can only be considered as special appeals cannot be accepted as correct. In the light of the above discussion, we would hold that the court to which appeal would lie under Sec.341 against the order passed by the Sub Court, Payyannur in this case is the District Court, Thalassery and not this Court. 7. In the circumstances, we would hold that the appeal is not maintainable before this Court. In the light of the above discussion, we would hold that the court to which appeal would lie under Sec.341 against the order passed by the Sub Court, Payyannur in this case is the District Court, Thalassery and not this Court. 7. In the circumstances, we would hold that the appeal is not maintainable before this Court. Accordingly, we direct the Office to return the memorandum of appeal to the appellants for presentation to the proper court under Sec.341 of the Criminal Procedure Code. V.K.-----Ordered accordingly.