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2012 DIGILAW 48 (KER)

Rama Krishnan. K. R. v. State of Kerala

2012-01-10

V.K.MOHANAN

body2012
JUDGMENT (1) The appellant herein is the complainant in C.M.P.No.717 of 2009 of the court of the Enquiry Commissioner and Special Judge, Thrissur. By the impugned order dated 10.3.2011, the learned Judge of the Special court has found that the appellant/complainant is liable to be prosecuted for the offence under Section 211 of IPC and thus ordered to file a complaint before the Chief Judicial Magistrate court-Thrissur for prosecuting the appellant for the offence under Section 211 of IPC. It is the above order which is under challenge in this appeal. (2) Heard the counsel for the appellant. I have also perused the order impugned in this appeal. (3) As I indicated earlier, the order challenged in this appeal is an order issued under Section 340 of Cr.P.C., by which the learned Judge of the Special court has found that the appellant herein is liable to be prosecuted for the offence under Section 211 of IPC and also observed that the complaint will be filed before the court of Chief Judicial Magistrate-Thrissur for prosecuting the complainant/ appellant for the offence punishable under Section 211 of IPC. V.C.No.13 of 2009/T.S.R. was registered on the basis of a private complaint preferred by one Wilson represented by his power of attorney holder Ramakrishnan. The allegation in the complaint is that the accused therein, who was working as Village Officer in Oorakam village has conducted an enquiry in a petition filed by Ettumana Marananthara Sahaya Samithy to the District Collector, Thrissur, against the complainant claiming a way through the property of Wilson and when the said complaint received by the accused, she undertook an enquiry and filed a false report stating that there is a way existing to the property of the Samithy through the property of one Devaki and the said report was filed by misusing the position as a public servant and after receiving the illegal gratification from the samithy. The said complaint was sent for investigation under Section 156(3) of Cr.P.C. and the Investigating Officer has filed a report showing that the complaint preferred by the appellant as a false one and recommended action to be taken against the complainant/the appellant herein, for the offence under Section 211 of IPC. The said complaint was sent for investigation under Section 156(3) of Cr.P.C. and the Investigating Officer has filed a report showing that the complaint preferred by the appellant as a false one and recommended action to be taken against the complainant/the appellant herein, for the offence under Section 211 of IPC. On the basis of the above report, the learned Judge of the said court issued a show-cause notice to the appellant/complainant for not taking action against him for the offence under Section 211 of IPC. Pursuant to the said notice, the appellant appeared before the court and furnished an explanation and an enquiry was undertaken by the Judge of the Special court as contemplated under Section 340 of Cr.P.C. and witnesses were examined. After considering the entire facts and circumstances and the evidence on record, the learned Judge of the Special court has found that, the prima facie evidence would prove that the facts reported by Smt.Regha who is the accused in C.C.No.13 of 2009/TCR is proved and the petitioner in C.M.P.No.717 of 2009 has filed a complaint against said Smt.Regha raising false allegation which he knows to be false and the complaint was filed with an intention to cause injury to said Regha and thereby the complainant/appellant has committed the offence punishable under Section 211. On the basis of the above finding, the learned Magistrate of the Special court further found that the interest of justice demands that the complainant in C.M.P.No.717 of 2009 is liable to be prosecuted for the offence under Section 211 of IPC. Challenging the above findings and order, the appellant herein preferred this appeal under Section 341 of Cr.P.C. (4) Section 341 of Cr.P.C. reads as follows :- "Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 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-section (4) of section C, 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 section 340, and if it makes such complaint, the provision of that section shall apply accordingly. (2) An order under this section and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision." On a reading of S.341 of Cr.P.C. it is crystal clear that an appeal can be preferred against the order under Section 340 of Cr.P.C. by any person, on whose application in court other than a High Court, has refused to make a complaint under Sub Section (1) or Sub Section (2) of S.340 and secondly by a person against whom such a complaint has been made by such court. In the present case it is beyond dispute that the proceedings under Section 340 of Cr.P.C. was initiated against the appellant by the Judge of Special court suo motu. No doubt, as per the impugned order, which is against the appellant, the learned Judge has directed to file an appeal. A Bench decision of the Honourable Apex court in Surendra Gupta Vs. Bhagwan Devi (Smt) and another reported in 1994(4) SC 657 has held that the language of the section is plain and simple and the right of the appeal is conferred against filing of a complaint. In the very same decision the Apex court has further held that, an order of the Additional District and Sessions Judge thus could not be construed as a complaint and no appeal could be filed against it under Section 341 of Cr.P.C. (5) The learned counsel for the appellant on the strength of the decision of the Apex court reported in Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another (2005(4) SCC 370) and Rugmini Ammal (Dead) by LRs. Vs. V.Narayana Reddiar and others (2007(12) SCC 611) submitted that the appellant herein left with no remedy other than by filing an appeal as contemplated under Section 341 of Cr.P.C. It is also the submission of the learned counsel that the above two decisions which relied on by the appellant are rendered by the Constitutional Bench. According to the learned counsel in this appeal, this Court is bound to follow the same and the appeal is to be considered on merit. I am unable to sustain the above contention. According to the learned counsel in this appeal, this Court is bound to follow the same and the appeal is to be considered on merit. I am unable to sustain the above contention. (6) On a reading of Section 341 it can be seen that, the language used in the section is very plain and simple and no right of appeal is conferred on a person against whom a complaint is ordered to be filed. In the light of the decision in Surendra Gupta's case, the right of an accused or a person against whom an order under Section 341 or 342 is passed, will be accrued only when a complaint is actually filed. The decision cited by the learned counsel for the appellant are not directly on the point and the dictums laid down in the above decisions do not confer any right on a person against whom an order is passed under Section 340 Sub Section (1) or Sub Section (2) of Section 340 of Cr.P.C. Therefore, the present appeal is not maintainable at the instance of the appellant. (7) In the result, this appeal is not maintainable at this stage and accordingly the same is dismissed. I have no hesitation to observe that the dismissal of this appeal will not stand in the way of the appellant in working out his remedy whatever available to him.