Madras High Court
S.Soundarapandian vs Ponram on 19 October, 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/10/2006 CORAM: THE HONOURABLE MR.JUSTICE M.JEYAPAUL CRL.O.P.(MD).No.7227 of 2006 S.Soundarapandian ... Petitioner Vs. 1.Ponram 2.Mahalingam 3.Mariappan 4.Subramanian 5.Kumarandy 6.Periyasamy 7.Hanipal 8.Solaiappan 9.Gurusamy ... Respondents Prayer Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to set aside the orders of issuing notice dated 26.09.2002 in C.A.No.106 of 2002 on the file of the Principal Sessions Judge, Madurai. !For Petitioner : Party-in-Person ^ :ORDER
The Criminal Original Petition is filed challenging the notice issued to the respondents by the learned Principal Sessions Judge, Madurai, while taking on file C.A.No.106 of 2002 under Section 341(1) of the Code of Criminal Procedure.
2. The petitioner filed a private complaint invoking the provision under Section 190 of the Code of Criminal Procedure before the learned Judicial Magistrate No.VII, Madurai, praying to make a complaint against the respondents under Section 195(1)(b) r/w 340 of the Code of Criminal Procedure. The learned Judicial Magistrate No.VII, Madurai has chosen to reject the said petition in C.M.P.No.3698 of 2002.
3. The petitioner, who is a party-in-person, filed an appeal before the learned Principal Sessions Judge, Madurai, invoking the provision under Section 341(1) of the Code of Criminal Procedure, aggrieved by the aforesaid order passed by the learned Judicial Magistrate No.VII, Madurai. The learned Principal Sessions Judge, Madurai by his order dated 26.09.2002 has directed to give notice to all the respondents for the hearing on 24.10.2002, immediately after taking the criminal appeal preferred by the petitioner under Section 341(1) of the Code of Criminal Procedure on file.
4. The contention of the petitioner herein is that the learned Principal Sessions Judge, Madurai has committed an error in issuing notice in the proceedings pending before him under Section 341(1) of the Code of Criminal Procedure, inasmuch as, the respondents have no locus standi to come before the appellate Court at the stage, where the Court was grappled with the issue as to whether a prima facie case has been made out to make a complaint under Section 340 of the Code of Criminal Procedure. The further contention is that the learned Principal sessions Judge, Madurai should not have entertained the application filed by the petitioner as Criminal Appeal, inasmuch as, no order to make a complaint was passed by the learned Judicial Magistrate No.VII, Madurai, under Section 340 of the Code of Criminal Procedure.
5. The Court heard the submission made by the petitioner, Party-in-Person.
6. He would vehemently submit that the respondents are not entitled to notice during the proceedings initiated by the petitioner under Section 341(1) of the Code of Criminal Procedure before the learned Principal Sessions Judge, Madurai. He would further contend that the application filed before the learned Principal Sessions Judge, Madurai, should not have been entertained as criminal appeal.
7. It is relevant to refer under Section 341 of the Code of Criminal Procedure, which reads as follows:
"Appeal.- (1) 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 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 Section 340, and if it makes such complaint, the provisions 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."
8. The plain reading of Section 341 of the Code of Criminal Procedure would disclose two important aspects, which are relevant for the disposal of this criminal original petition preferred by the petitioner, party-in-person. As per Section 341 of the Code of Criminal Procedure only an appeal will lie to the superior Court, from that of the Court which had dealt with the petition filed under Sub-section 1 or Sub-section 2 of Section 340 of the Code of Criminal Procedure. If the Court had refused to make a complaint, the author of the petitioner can prefer an appeal under Section 341 of the Code of Criminal Procedure. Likewise, if the Court has chosen to make a complaint under Section 340 of the Code of Criminal Procedure, the person, who suffered an order thereunder, may prefer an appeal before the superior Court invoking the provision under Section 341 of the Code of Criminal Procedure.
9. A reference is made to Rule 68 of the Criminal Rules of Practice and Circular Orders, 1958 by the petitioner Party-in-person to support his submission that the application filed before the learned Principal Sessions Judge, Madurai, should have been numbered as criminal miscellaneous petition and not criminal appeal. On a careful perusal of Rule 68 of the Criminal Rules of Practice and Circular Orders, 1958, it is found that the applications made under the old provisions of Sections 476 and 476(A) corresponding to the new Section 340 shall be registered by the trial Court as a criminal miscellaneous petition and every appeal filed against an order passed under the said application before the superior authority shall be registered as a criminal appeal. Therefore, the weak submission made by the petitioner, party-in-person that the learned Principal Sessions Judge, Madurai should not have entertained the application filed by the petitioner as against the order of rejection passed by the learned Judicial Magistrate No.VII, Madurai as criminal appeal stands rejected. It is held that only an appeal will lie as against any order passed under Section 340 of the Code of Criminal Procedure.
10. It is true that Section 340 of the Code of Criminal Procedure does not contemplate issuance of notice to the proposed accused. But Section 341(1) of the Code of Criminal Procedure specifically states that the proposed accused shall be given notice before ever a decision is arrived at in the appeal preferred under Section 341 (1) of the Code of Criminal Procedure.
11. The petitioner party-in-person referred to an authority reported in Pritish V. State of Maharastra [2002(1) SCC 253], wherein the Honourable Supreme Court has held that the Court is not required to afford any opportunity during the preliminary enquiry undertaken by the Court under Section 340(1) of the Code of Criminal Procedure to the person against whom the petition has been filed.
12. Under Section 340 of the Code of Criminal Procedure, the proposed accused cannot claim it as a matter of right an opportunity to be heard during the preliminary enquiry being conducted by the Magistrate concerned. If the Magistrate feels that the proposed accused also will have to be heard during the course of preliminary enquiry embarked upon under Section 340(1) of the Code of Criminal Procedure Code, such a procedure adopted by the Magistrate cannot be termed as illegal as there is no such embargo.
13. The aforesaid authority will not apply to the appeal proceedings pending under Section 341(1) of the Code of Criminal Procedure. Further, as already pointed out the very section contemplates specifically issuance of notice to the other side before taking any decision on the appeal preferred by the petitioner. It is thus held that in an appeal preferred as against refusal to complaint, the proposed accused is entitled to notice.
14. In view of the above, this Court finds that the impugned order passed by the learned Principal Sessions Judge, Madurai on 26.09.2002 does not warrant any interference. Therefore, this Criminal Original petition fails and the same is dismissed accordingly.
To The Principal Sessions Judge, Madurai.