Kerala High Court
V.A.Rocky vs Pavunni on 4 December, 2014
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936
OP(Crl.).No. 279 of 2014 (Q)
-----------------------------
AGAINST THE JUDGMENT IN CRL.A NO. 82/2014 OF THE SESSIIONS COURT,
THRISSUR
PETITIONER/APPELLANT:
---------------------
V.A.ROCKY, AGED 67 YEARS,
S/O.VADAKKETHALA ANTONY, VALARKAVU, PUTHUR ROAD,
NADATHARA VILLAGE, KURIACHIRA P.O, THRISSUR TALUK
THRISSUR DISTRICT.
BY ADVS.SRI.C.D.DILEEP
SMT.SHYLAJA VARGHESE
RESPONDENTS/RESPONDENT:
-------------------------
1. PAVUNNI, AGED 57 YEARS,
S/O.CHETTAKKAL ANTONY, CHALAKUDY P.O,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT 680 307.
2. BABY JOSE, AGED 55 YEARS,
W/O.PATHIPILLY JOSE, KORATTY P.O,
KIZHAKKUMMURY VILLAGE, MUKUNDAPURAM TALUK - 680 308.
3. ROSY POULOSE, AGED 75 YEARS,
W/O.PENGIPARAMBIL PAULOSE, PARIYARAM VILLAGE,
KUTTIKKAD P.O., MUKUNDAPURAM TALUK - 680 721.
4. DAISY, AGED 75 YEARS,
W/O.THOTTAPILLY FRANCIS, ALOOR P.O., ALOOR VILLAGE
MUKUNDAPURAM TALUK - 680 683.
5. STANLY JOHN, AGED 55 YEARS,
S/O.KANIMANGALUTHKARAN JOHN, KURIACHIRA P.O.
UNITY ROAD, THRISSUR DISTRICT - 680 006.
6. VAKKACHAN, AGED 59 YEARS
VALIKKODATH THAKKOLKARAN ITTI MATHEW,
PUTHANCHIRA VILLAGE, PUTHANCHIRA P.O.
THRISSUR DISTRICT - 680 682.
7. LAILA, AGED 57 YEARS,
W/O.KOLANCHERRY ITTOOP, KOTHAMANGALAM VILLAGE,
CHELAAD DESOM, KOTHAMANGALAM P.O., ERNAKULAM DISTRICT
PIN - 686 691.
....2
OP(Crl.).No. 279 of 2014 (Q) : 2 :
8. PREMAN, AGED 59 YEARS,
S/O.PALOKKARAN JOHN, KIZHAKKE CHALAKUDY VILLAGE,
MUKUNDAPURAM TALUK - 680 307.
9. THOMAS, AGED 63 YEARS,
PAREKKADAN KUNJUVAREED, KIZHAKKE CHALAKUDY VILLAGE,
MUKUNDAPURAM TALUK - 680 307
10. THOMAS KAREDAN, AGED 70 YEARS,
KAREDAN HOUSE, CHALAKUDY, NEAR GOVERNMENT HOSPITAL,
PIN - 680 307.
11. STATE OF KERALA
REPRESENTED BY THE GOVERNMENT PLEADER
HIGH COURT OF KERALA - 6823 031.
R11 BY GOVERNMENT PLEADER SMT.P.MAYA
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
04-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(Crl.).No. 279 of 2014 (Q)
-----------------------------
APPENDIX
PETITIONER'S EXHIBITS:
----------------------
EXT.P-1: COPY OF THE IA NO.2290/2011 IN O.S. 518/1994 OF THE
MUNSIFF'S COURT, IRINJALAKUDA.
EXT.P-2: COPY OF THE ORDER OF THE IA NO.2290/2011 IN OS
518/1994 OF THE MUNSIFF'S COURT, IRINJALAKUDA.
EXT.P-3: COPY OF THE APPEAL MEMORANDUM OF CRL.APPL.82/2014 OF
THE SESSIONS COURT, THRISSUR.
EXT.P-4: COPY OF THE JUDGEMENT OF CRL.APPL 82/2014 OF THE
SESSIONS COURT, THRISSUR.
EXT.P-5: COPY OF THE PROCEEDINGS SHEET OF MUNSIFF'S COURT IN
IA 2290/14
RESPONDENTS' EXHIBITS
--------------------
NIL
//TRUE COPY//
P.A TO JUDGE
ab
CR
P.UBAID, J.
---------------------------------------
O.P (Crl) No.279 of 2014
---------------------------------------
Dated this the 4th day of December, 2014
J U D G M E N T
The petitioner herein is the 12th defendant in O.S No.518/1994 before the Munsiff's Court, Irinjalakkuda. During the proceeding he filed an application under Section 340 of the Code of Criminal Procedure for enquiry and action against the plaintiff and the other defendants. After enquiry, the learned Munsiff rejected the application and also directed the petitioner to pay a cost of 1,000/- to the respondents therein, under Section 342 of the Code of Criminal Procedure. Aggrieved by the said order, the petitioner preferred a Criminal Appeal before the Court of Session, Thrissur as Crl.A No.82/2014. At the initial stage nobody noticed that such an appeal is not maintainable. Section 341 of the Code of Criminal Procedure provides that any person aggrieved by an order under Section 340 of the Code of Criminal Procedure will have to file appeal to the court to which the court that passed orders is subordinate within the meaning O.P (Crl) No.279 of 2014 2 of Sub Section 4 of Section 195 of the Code of Criminal Procedure. This material aspect was found out by the learned Additional Session Judge, Thrissur when the appeal came up for hearing. Finding that Criminal Appeal is not maintainable against an order passed by a civil court under Section 340 of the Code of Criminal Procedure, the learned Additional Session Judge dismissed the appeal by judgment dated 7.11.2014. The said judgment is under challenge in this original petition brought under Article 227 of the Constitution of India.
2. The prayer sought in this proceeding is to set aside Ext.P4 judgment of the learned Additional Sessions Judge, and to remand the matter to the court below with direction to the registry to number the proceeding appropriately for disposal.
3. On hearing the learned counsel, I find that this original petition cannot be entertained under Article 227 of the Constitution of India. The petitioner wrongly filed an appeal before the wrong forum and obtained a judgment of dismissal. Though authorised under Section 340 of the Code of Criminal Procedure enquiry was conducted and decision was taken by the civil court. Section 340 of the Code of Criminal Procedure empowers any court including civil court to conduct enquiry as O.P (Crl) No.279 of 2014 3 provided therein and to make complaint before the proper court. A Criminal Appeal can be brought before the the Sessions Court under Section 341 of the Code of Criminal Procedure only against an order passed by the Criminal Court under Section 340 of the Code of Criminal Procedure. When such order is passed by the civil court, the proper remedy is to file appeal against the said order before the appellate court on the civil side. Instead of filing a Civil Miscellaneous Appeal (CMA) before the civil appellate forum the petitioner wrongly filed a Criminal Appeal before the Sessions Court. True, it is, that the person functioning in both the courts is the same. But the two forums are different. One is District Court and the other is Court of Session, though handled by the same person. The petitioner cannot find justification by saying that he has preferred appeal before the same person. Appeal should be filed before the court and not before the person. In this case appeal will have to be filed before the court to which appeals ordinarily lie from the appealable decrees of the Munsiff's Court, Iringalakkuda. I find that this Original Petition cannot be entertained, and it is liable to be dismissed without admission. However, it is made clear that the petitioner can file a proper civil appeal before the O.P (Crl) No.279 of 2014 4 proper court, subject to the law of limitation. If not filed in time, he will have to file application to condone the delay, and such application will be considered on merits by the appellate court, and appropriate decision will be taken.
In the result, this Original Petition is dismissed in limine without being admitted to files, however, without prejudice to the right of the petitioner to file proper Civil Miscellaneous Appeal before the proper court, as indicated above.
P.UBAID JUDGE ab