Jharkhand High Court
Darastul Khalifa vs State Of Jharkhand & Ors on 17 October, 2008
Equivalent citations: 2009 CRI. L. J. (NOC) 432 (JHAR.), 2009 (1) AIR JHAR R 513, (2008) 72 ALLINDCAS 789 (JHA), 2009 (64) ACC (SOC) 20 (JHA)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 828 of 2008
Darastul Khalif ...... Appellant
Versus
The State of Jharkhand & ors. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE AJIT KUMAR SINHA
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For the appellant : Mr. Indrajit Sinha, Advocate
For the State : Mr. Manoj Kumar, A.P.P.
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C.A.V. on 05.09.2008 Pronounced on 17.10.2008
ORDER
04. 17.10.2008The appellant has preferred the statutory appeal under Section 341 of the Code of Criminal Procedure, challenging the order dated 11th March, 2008 passed by the learned Additional Judicial Commissioner (Fast Track Court No. VII), Ranchi in Title Appeal No. 97 of 2005 by reasons of which the petitions, filed by the appellant on 11th January, 2007 and 25th May, 2007 for issuance of a direction to defendant nos. 2 to 6 to appeal before the court for taking their specimen signatures as also the petition filed on 20th November, 2007 for initiating a Miscellaneous Case have been rejected.
2. This Hon'ble Court vide order dated 17th July, 20078 had asked for a report from the office with respect to maintainability of criminal appeal against the impugned order dated 11th March, 2008 passed in Title Appeal No. 97 of 2005. Pursuant thereto, the office vide its report dated 28th July, 2008 and 31st July, 2008 has opined that if a petition under Section 340 of the Code of Criminal Procedure for enquiry is refused and/or allowed, an appeal under Section 341 of the Code of Criminal Procedure is considered to be maintainable. At the same time, the office has also reported that the application of the appellant, which has been refused, was not preferred under Section 340 of the Code of Criminal Procedure and thus, the appeal preferred under Section 341 of the Code of Criminal Procedure was not maintainable.
3. I have perused the impugned order dated 11th March, 2008 and have also considered the report of the office as well as the applicable provisions of law. It appears that a Misc. Case was filed to verify the genuineness of the signatures and to initiate a proper enquiry in respect of filing of Vakalatnama by respondent nos. 2 to 6 in Title Suit No. 252 of 2002. The allegation was that the same were forged and fabricated. The learned trial court after considering the materials and on perusal of the record opined that the Vakalatnama was filed on 24th February, 2003 in the said Title Suit and respondent nos. 2 to 6 have filed their Vakalatnama in the appeal on 2nd March, 2006 i.e. after a gap of three years and, thus, there was a 2. chance of some difference in the signatures of respondent nos. 2 to 6. It also opined that there was no reason or basis as to why others will sign over the Vakalatnama of respondent nos. 2 to 6. In the aforesaid background, the prayer for issuance of a direction to defendant nos. 2 to 6 to appear before the court for taking their specimen signatures and the petition filed on 20th November, 2007 for initiating a Misc. Case for enquiry were rejected.
4. There is no dispute with regard to the right of a statutory appeal as provided under Section 341 of the Code of Criminal Procedure in case an application to make a complaint under Sub-section (1) or Sub-section (2) of Section 340 of the Code of Criminal Procedure is refused.
5. Any person being aggrieved by an order passed under Section 340 of the Code of Criminal Procedure either refusing to make a complaint or making a complaint, may prefer appeal to the court to which the court passing the order is sub-ordinate. Thus, against an order dismissing an application under Section 340 of the Code of Criminal Procedure, revision is not maintainable due to the bar, as provided under Section 341(2) of the Code of Criminal Procedure. Likewise if an order is passed under Section 341 of the Code of Criminal Procedure by the appellate court the same is not revisable by the High Court. However, the High Court can invoke its inherent power under Section 482 of the Code of Criminal Procedure in an appropriate case, which has been, accordingly, upheld in the case of Lalit Mohan V. Binoyendra Nath, as reported in A.I.R. 1982 SC page-785. Likewise when the order challenged in the appeal is one passed under Section 340 of the Code of Criminal Procedure by the sub- Court directing a complaint to be made to the concerned 1st Class Magistrate Court, then in view of first part of Sub-section (4) of Section 195 of the Code of Criminal Procedure read with Section 341 of the Code of Criminal Procedure, the appeal will lie to the District Court and, thus, an appeal directed presented to the High Court in such cases is not maintainable. The Hon'ble High Court of Kerala in an identical case directed the appeal to be returned to the filing advocate for presentation to the District Court in the case of Jose Joseph V. Syndicate Bank, Sreekanapuran, as reported in 1997 Cr.L.J. page-1543 (ker.).
6. The Hon'ble Supreme Court had an occasion to consider a similar issue in the case of Pritish V. State of Maharashtra, as reported in (2002)1 SCC page-253, wherein, it was held that it is for the court to conduct a preliminary enquiry in order to decide the question of 3. expediency in the interest of justice and at paragraph no.14 it held as under:
"Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is sub-ordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code of reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would be accused. In any event the appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court, as stated earlier."
7. In the aforesaid background, the appeal against an order passed under Section 340 of the Code of Criminal Procedure is provided under Section 341 of the Code of Criminal Procedure to the court to which the former court is subordinate.
8. However, in the instant case the issue is different since neither the Misc. Case for enquiry was filed under Section 340 of the Code of Criminal Procedure nor the impugned order of rejection dated 11th March, 2008 has been passed under Section 340 of the Code of Criminal Procedure and, thus, the present statutory appeal preferred under Section 341 of the Code of Criminal Procedure is even otherwise not maintainable. In the aforesaid background the appeal under Section 341 of the Code of Criminal Procedure is rejected as not maintainable. However, this order will not bar the appellant to invoke any appropriate remedy as provided under law. There will be no order as to costs.
(Ajit Kumar Sinha, J.)
Jharkhand High Court, Ranchi
A.K.Verma/ A.F.R.