Kerala High Court
Lakshmi vs Santha on 30 April, 2020
Author: B. Sudheendra Kumar
Bench: C.K.Abdul Rehim, B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 30TH DAY OF APRIL 2020 / 10TH VAISAKHA, 1942
UNNUMB.CRL.A.No.16 OF 2020
AGAINST THE ORDER/JUDGMENT IN OPMV 846/2003 DATED 23-07-2015 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD
APPELLANTS:
1 LAKSHMI
AGED 59 YEARS
D/O. LATE PECHI, CHATHANTHARA VEEDU KINASSERY,
PALAKKAD.
2 KAMALAKSHMI,
D/O. LATE PECHI,
MUNDAKKODE CHADRANAGAR, PALAKKAD.
3 MALLIKA,
AGED 39 YEARS
D/O. LATE PECHI, KOOTTALA VEEDU, MANJALOOR,
PALAKKAD,.
BY ADVS.
SRI.M.SHAJU PURUSHOTHAMAN
SRI.K.S.RAJESH
RESPONDENTS:
1 SANTHA
AGED 52 YEARS
W/O. APPUNNI,
CHATHANTHARA VEEDU, KINASSERY, PALAKKAD 695 501.
2 MANOJ,
AGED 32 YEARS
S/O. APPUNNI,
CHATHANTHARA VEEDU, KINASSERY, PALAKKAD 695 501.
3 BINDU,
AGED 34 YEARS
D/O. APPUNNI,
CHATHANTHARA VEEDU, KINASSERY, PALAKKAD 695 501.
4 VINOJ,
AGED 30 YEARS
S/O. APPUNNI,
CHATHANTHARA VEEDU, KINASSERY, PALAKKAD 695 501.
5 SREEDEVI,
AGED 28 YEARS
D/O. APPUNNI,
CHATHANTHARA VEEDU, KINASSERY, PALAKKAD 695 501.
THIS UNNUMBERED CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 30-04-2020, THE COURT ON 30-04-2020 DELIVERED THE FOLLOWING:
[CR]
C.K. ABDUL REHIM
&
B. SUDHEENDRA KUMAR, JJ.
-----------------------------------------------------
Unnumbered Crl. Appeal 16 of 2020
-------------------------------------------------------
Dated this the 30th day of April, 2020
ORDER
Abdul Rehim, J.
The above appeal was originally filed as a 'Motor Accident Claim Appeal', ('MACA'). The appeal memorandum reflected that the appeal was filed under Section 341 of the Code of Criminal Procedure(Cr.P.C.), read with Section 169(2) of the Motor Vehicles Act, 1988. When the Registry of this court noted defect, the appeal was sought to be be filed under Section 173 of the Motor Vehicles Act. The Registry has not yet accepted the same for the reason that the order impugned is not an Award passed by the Motor Accidents Claims Tribunal, as required under Section 173 of the Motor Vehicles Act. The Unnumbered Crl. Appeal 16 of 2020 -:4:- Registry noted that, probably an original petition under Article 227 of the Constitution of India alone may lie against the order impugned. However, the matter was posted before the Bench for hearing on the question of maintainability. On 05.09.2016, learned counsel appearing for the appellants conceded that the Registry is correct in holding that an appeal will not lie under Section 173 of the Motor Vehicles Act. He sought time for curing the defect, which was allowed. Thereafter the case was re-presented with correction made in the 'Docket Sheet' in the cause title portion, styling it as an 'appeal', instead of "MACA". But the memorandum of appeal in all other respects remained as such. On the request of the counsel for the appellants, the matter was posted before this Bench, for hearing on the question of maintainability. Senior Advocate Sri. P. Vijayabhanu has consented to assist the court as Amicus Curiae. Hence the question of maintainability was heard in detail.
2. A brief history on the facts may be useful. In a motor Unnumbered Crl. Appeal 16 of 2020 -:5:- vehicle accident, which occurred on 25.07.2003, a person named Velayudhan died. Claim petition seeking compensation was filed before the Motor Accidents Claims Tribunal, Palakkad, by seven persons, claiming to be his wife, parents, son and daughters. Award was passed in the case on the basis of a settlement arrived, on 21.11.2006, for a total compensation of `1,90,000/-. It was specified in the Award that the compensation will be shared equally between all the seven claimants, subject to the rider that the amount will be released only on production of 'legal heirship certificate'. The amount of compensation was received by all the claimants, on production of the legal heirship certificate, on 06.08.2007. Almost two years thereafter, mother of the deceased, who was one among the claimants received share of the compensation, filed an interim application before the Tribunal as I.A. No.930/2009, invoking Section 340 of Cr.P.C., alleging that the deceased Velayudhan had no wife and children and that she alone was Unnumbered Crl. Appeal 16 of 2020 -:6:- his legal heir entitled to get the compensation. It was alleged that, she was illiterate and she came to know that the other claimants had joined the claim petition only after the Award was passed. Further allegation was that, her signature in the Petition and the Vakkalath were forged. According to her, the lady who joined the claim petition as wife of deceased Velayudhan was not actually his wife and she had married a person named Appunni and the children were born to the said Appunni. The petitioner alleged that, the respondents in I.A. No.930/2009, who are other claimants in the proceedings before the Tribunal had produced documents knowing them to be false, with an intention to mislead the Tribunal. In short, allegation was that, the respondents had fabricated false evidence and produced forged documents with their knowledge, knowing well that they are not true and genuine. Therefore it is alleged that they have committed offences punishable under Sections 191, 192, 193, 198, 200, 464, 467 and 468 of the Unnumbered Crl. Appeal 16 of 2020 -:7:- Indian Penal Code. Hence the Tribunal was requested to conduct an inquiry into the matter.
3. During pendency of I.A. No.930/2009 before the Tribunal, the petitioner therein died, on 15.03.2011. Three years after the death, three of her daughters filed another interim application as I.A. No.4628/2014, seeking permission to continue the proceedings initiated under Section 340 Cr.P.C.
4. The Tribunal considered I.A. Nos.930/2009 and 4628/2014 together and passed a common order on 23.07.2015, which is impugned herein. It was found that the 'legal heirship certificate', which was produced before the Tribunal at the time of disbursal of the amount of compensation, is a document issued by a competent authority. Even the petitioner in I.A. No.930/2009 had received the compensation on the basis of that document. Therefore the said document cannot be said to be fabricated or false evidence. Nor it can be said to be a document forged for the purpose of cheating Unnumbered Crl. Appeal 16 of 2020 -:8:- someone. It was found that the 'legal heirship certificate' is issued by the authority concerned, after obtaining report from the local Village Officer. So long as it stands scrutiny and has not been set aside or declared to be vitiated, it is a document which will have to be relied upon by the forum before which it is produced. If the petitioner in I.A. No.930/2009, had any reason to believe that the said document was obtained by fraud, S.340 Cr.P.C. is not the remedy available to her. Prima facie, it was found that, none of the offences alleged against the respondents are made out. Therefore the Tribunal found that there is no reason to proceed further in the matter and to conduct a preliminary inquiry in the matter as envisaged under Section 340 Cr.P.C. Hence both the I.As were dismissed. This appeal is instituted against the said order.
5. Question to be decided is as to which is the forum to which an appeal would lie from an order passed by a Motor Accidents Claims Tribunal, under Section 340 Cr.P.C. Unnumbered Crl. Appeal 16 of 2020 -:9:- Incidentally, question also arises as to what would be the type of appeal and which is the forum to consider such appeal and also as to what should be the procedure to be adopted?
6. With respect to the remedy available against an order passed under Section 340 Cr.P.C., Section 341 Cr.P.C. provides an appeal, when such order is passed by any court other than a High Court. The appeal is provided when the court refused to make an order under sub-section (1) or (2) of Section 340 Cr.P.C. The remedy of appeal is also available to a person against whom a complaint under sub-sections (1) and (2) of Section 340 Cr.P.C. has been made out. Section 341 provides that such appeal should be filed in the court to which the former court which passed the order is superior, within the meaning of sub-section (4) of Section 195 Cr.P.C. The Hon'ble Supreme Court in the ruling in K. Sudhakaran v. State of Kerala(AIR 2009 SC 1898) held that, on consideration of sub-section (2) of Section 341, it is evident that an order under Section 341 and Unnumbered Crl. Appeal 16 of 2020 -:10:- subject to any such order, an order under Section 340, shall be final and shall not be subject to revision. Hence there is a legal embargo created against filing any revision against an order under Section 340 Cr.P.C. The finding is that, a revision is clearly barred under Section 341(2) Cr.P.C. against any order passed under Section 340 or Section 341 of Cr.P.C.
7. The next question is as to what is the remedy available if the order under Section 340 is passed by a civil court. A Bench consisting of five Judges in Patna High Court had considered this issue. On analyzing the provisions contained in the Code of Criminal Procedure, 1898(old Code), in Mt. Rampati Kuer and others v. Judunandan Thakur and others(AIR 1968 Patna 100), with respect to Section 476 therein, which is similar to Section 340 of the Code of Criminal Procedure, 1973(new Code) it is held that, an inquiry under Section 476 of the Code will also be an inquiry as defined in Section 4(k) of that Code. It will be a criminal proceedings, Unnumbered Crl. Appeal 16 of 2020 -:11:- even if the inquiry is conducted by a civil court, in view of the express provisions of Section 476 r/w Section 5(1). Hence if Section 439 read with Section 5(1) is considered, it will be reasonable to hold that inquiries even by civil courts into an offence under the Penal Code will come within the revisional jurisdiction of the High Court under Section 439 Cr.P.C. and the High Court can interfere under Section 561-A. The provisions of the Code of Civil Procedure cannot apply, because Section 5(1) is an exhaustive provision so far as inquiries into offences under the Penal Code is considered. It is noticed that, against an order under Section 476 an appeal is provided under Section 476-B. Even if an appellate order under Section 476-B is passed by a civil court, the order being passed in a criminal proceedings, is revisible under Section 439 of the old Code, is the finding. It was categorically found that Section 115 of the Code of Civil Procedure cannot apply in such a situation. The Bench in Patna High Court had relied on various decisions Unnumbered Crl. Appeal 16 of 2020 -:12:- rendered by different High Courts, including Full Bench decisions, in order to arrive at the above conclusion.
8. In Lalit Mohan v. Benoyendra Nath (AIR 1982 SC
785), the hon'ble Supreme Court observed that, an order passed in an appeal under Section 341 Cr.P.C., would not be revisible by a High Court under Section 397(2) of the Code, but there can be no doubt that the High Court is entitled to examine the matter under Section 482 of the Code, which expressly overrules the bar contained in Section 341(2) of the Code. The said principle has been followed by a learned Single Judge while deciding the case in Jose Kuruvinakunnel v. Jose(1997(1) KLT 150). It is held therein that, as against the judgment of the appellate court in an appeal filed against an order passed by the trial court in a proceedings under Section 340 of Cr.P.C., no revision will lie to this court under Section 115 C.P.C. It is further held that though a revision against the judgment in an appeal is sustainable before the High Court Unnumbered Crl. Appeal 16 of 2020 -:13:- under provisions of the Cr.P.C., it will lie only under Section 482 Cr.P.C. as no revision will lie under Section 397 Cr.P.C. because of the provision under sub-section (2) of Section 341 Cr.P.C.
9. It is pertinent to note that, another learned Judge of this court in Rocky v. Pavunni (2015(1) KLT 547) held that, where an order under Section 340 is passed by a civil court, appeal will lie before an appellate court on the civil side and not before a Sessions Court under Section 341 of the Code. With due respect, we may say that, the said decision is per incuriam, as it had not considered the earlier legal precedents remaining settled.
10. Based on the principle enumerated as above, it is unequivocally clear that the remedy against an order passed under Section 340 Cr.P.C. is by way of an appeal to the court which is superior to the court which passed such an order. As already discussed above, the appeal provided under Section 341 of Cr.P.C. is maintainable before a court to which the court Unnumbered Crl. Appeal 16 of 2020 -:14:- passed an order under Section 340 Cr.P.C. is subordinate, within the meaning of sub-section (4) of Section 195. It is clarified in sub-section (4) of Section 195 that, 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 lies, to the principal court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situate. The Hon'ble Supreme court in the decision in State of Andhra Pradesh v. V. Sarma Rao and others[(2007) (2) SCC 159 held that, the hierarchy of courts under Section 195 will have to be determined on having regard to the nature of proceedings and statutes, under which the same is required to be determined. Subordination of the courts, as specified in Section 3 of CPC is only for the purpose of the said Code and not for the purpose of any special Act, although the provisions thereof may be applicable to a case arising thereunder. It was Unnumbered Crl. Appeal 16 of 2020 -:15:- found that, sub-section (4) of Section 195 must be read with sub-section (3) thereof. Sub-section (3) broadly divides the courts into Civil, Revenue or Criminal, as also Tribunals constituted by or under a special statute. If a statute constitutes such a Tribunal and decide it to be a court for the purpose of the said section, Section 195 of Cr.P.C. shall apply. It is thus the Presiding Officers of the forums only, which are specified under sub-section (3) of Section 195 Cr.P.C., who may file a complaint petition in relation to the offences pending under Sections specified in clause (b) of sub-section (1) of Section 195 Cr.P.C. It is only for the purpose a legal fiction has been created, stating that the court shall be deemed to be subordinate to the court to which appeals ordinarily lie. If the appeals exclusively lies to the High Court, the court will become subordinate to the High Court and not to the principal civil court, though appeal may lie before the latter from the judgment and decree passed by it in a suit which may be filed before it. Therefore, the principle Unnumbered Crl. Appeal 16 of 2020 -:16:- enunciated is that, if a Tribunal had passed an order under Section 340 Cr.P.C., the appellate court for the purpose of Section 341 would be the appellate court under the relevant statute. In the above decision in State of Andhra Pradesh v. V. Sarma Rao(supra), on the basis of the said principle, it is held that, if a civil court is exercising powers under the Land Acquisition Act, the normal appellate court is the High Court and it become the appellate court for the purpose of Section 341 Cr.P.C.
11. In a case where an order under Section 340 Cr.P.C. is passed by a subordinate court in a civil matter, a Division Bench of this court in Jose Joseph v. Syndicate Bank (1997 (1) KLT 320 = ILR 1997 (2) Ker. 231) held that, the court which had passed the order being the sub court, which is a civil court from whose decree appeals ordinarily lie, it has to be held that there are two courts, the District Court and the High Court which are the courts to which appeals ordinarily lie. Since there are Unnumbered Crl. Appeal 16 of 2020 -:17:- two courts to which the appeals lie from the Sub court, the provisions in the proviso to Section 194(4) will also have to be applied to find out the particular court to which the subordinate court is subordinate for the purpose of Section 195(1)(b). On the facts of the said case it is held that the appeal under Section 341 Cr.P.C. would lie against an order passed by a Sub Court to the District Court concerned.
12. From the dictum settled through the decisions cited above, it is clear that, even if an order under Section 340 Cr.P.C. is passed by a civil court or by a Tribunal, such order need to be construed as an order passed in a criminal proceedings. Incidentally, it is to be noticed that, Rule 66 of the Criminal Rules of Practice(Kerala) specifically provides that, every application under Section 340 of the Code shall be filed as a Criminal Miscellaneous Petition. There is no doubt as to the remedy available against an order passed under Section 340 Cr.P.C., whether it is passed by a criminal court or a civil Unnumbered Crl. Appeal 16 of 2020 -:18:- court or by a Tribunal, it is by way of an appeal as provided under Section 341 Cr.P.C. to the higher court subordinate to which is the court which passed the order. With reference to Section 195(4), from the case law remaining settled, it is evident and clear that in the case of a civil court such appeals lie to the higher court to which a decree passed by such civil court can ordinarily be appealed against. If it is in a case of a Sub Court, the higher court to which the appeal would lie will be decided on the basis of the jurisdictional parameters. With respect to any Tribunal constituted under any particular statute, such appeals need to be filed before the court of appeal designated in that statute, to which an appeal will normally lie from orders passed by such Tribunal. In the case at hand, the order impugned is passed by the Motor Accidents Claims Tribunal. The order impugned is unquestionably one passed under Section 340 of Cr.P.C. The appellate court designated under the Motor Vehicles Act for filing an appeal against the Awards passed by Unnumbered Crl. Appeal 16 of 2020 -:19:- the Tribunal is the High Court. Therefore there is no doubt that an appeal under Section 341 of Cr.P.C. shall be maintainable before the High Court, against an order passed by the Tribunal under Section 340 Cr.P.C.
13. Next question is regarding the nomenclature to be followed in numbering the appeal. Since it is an appeal provided under the Code of Criminal Procedure, which is arising out of an order passed under the same Code, it is appropriate to number the appeal following the nomenclature followed with respect to Criminal Appeals filed before this court. Therefore the above appeal need to be filed as a Criminal Appeal.
14. Yet another question arose as to whether the appeal need to be considered by a Single Judge or by a Division Bench. As per the procedure remaining now in force, all appeals from the Motor Accidents Claims Tribunal are being heard by a Single Judge of this court. Therefore the appeal can be considered by a Single Judge of this court.
Unnumbered Crl. Appeal 16 of 2020 -:20:-
15. In view of the findings as mentioned above, the Registry is directed to return the above case for curing the defect appropriately in tune with the findings rendered as above. If the defects are cured and the appeal is resubmitted within a period of two weeks from today, the Registry shall accept the same on the files, subject to satisfaction of all other procedural requirements.
Sd/- C.K. ABDUL REHIM, JUDGE.
Sd/- B. SUDHEENDRA KUMAR, JUDGE.
ul/-
Sd/-
Unnumbered Crl. Appeal 16 of 2020 -:21:-C.K.ABDUL REHIM JUDGE Sd/-
B.SUDHEENDRA KUMAR JUDGE