Orissa High Court
Prahallad Mallik vs State Of Orissa And Anr. on 17 June, 1991
Equivalent citations: 1992CRILJ1432, 1991(II)OLR153
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. An interesting point relating to the starting period of limitation for filing an appeal Under Section 341 of t;he Code of Criminal Procedure, 1973 (in short the "Code") is involved in this appeal. This has come before us being referred by a single Judge who felt that the position was fluid notwithstanding a long catena of decisions holding the field for more than half a century. After we clear the cob-web of the legal controversy, we shall refer to the factual aspect.
2. An appeal Under Section 341 of the Code can be filed provided the contingencies prescribed therein are present. The first category covers appeal by a person, who had made an application in a Court other than a High Court, praying for a complaint under Sub-secs. (1) and (2) of Section 340 which has been refused. The" other category covers an appeal by a person against whom such a complaint has been made by such Court. In either event, the person concerned has the option of filing an appeal to the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195 of the Code. Section 340 lays down that an application being made in this behalf or otherwise, if any Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195 which appears to have been committed in relation to a procedure in any Court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may after such enquiry, if any, as it thinks necessary, record a finding to that effect; make a complaint in writing, send it to a Magistrate, first class, having jurisdiction. Additionally, it has been mandated that sufficient security for appearance of the accused before the concerned Magistrate has to be taken, or if the alleged offence is non-bailable and if the Court thinks it necessary send the accused in custody to such Magistrate, bind over any person to appear and give evidence before such Magistrate. Many of the High Courts are almost unanimous in their conclusion that the starting point for filing an appeal runs from the date of the complaint and not from the date of recording of the finding, that is, the date of the older directing making of the complaint. Some of these decisions are : AIR 1927 Lahore 54(Fitzholmes v. The Crown) AIR 1928 Bom.64 (Daga Deviji) Patil v. Emperor ); AIR 1929 Cal. 521 (Ramjan Ali v. Moolji Seeka and Co. ); AIR 1930 Rangoon 201 (K. V. C. Reddy v. Emperor); AIR 1935 Nagour 199 (Bal Govind v. Jamunabai); AIR 1943 Sind 157 (Naraindas V. Gidwani v. Emperor ); AIR 1955 Trav. Co, 226 (Valayudhan Pillai Kesava Piliai and Anr. v. Travancore Cochin State); AIR 19 5 Mad. 129 (In re T. Subramania Achari); AIR 1954 All. 225 Mahammad IIIapas v. State of U. P. ): AIR 1957 All. L. J. 17 (Jagan Prasad v. State and Ors. ); AIR 1957 All. L. J. 953 (Sundarlal v. Badri Prasad); AIR 1959 All. 529 (Ram Prasad Singh v. State); AIR 1963 All 352 (Ramchandra Soti v. State of Uttar Pradesh); AIR 1968 All, 295 (Chhajoo v. Radhey Shyam ); AIR 1965 Raj. 224 (Bahadurmal v. The State); AIR 1968 Pat. 100 (Mt. Rampati Kuer and Ors. v. Jadunandan Thakur and Ors. ) and 23 (1966) CLT 290 (Banamali Bhadra v. Jadunath Pradhan). Their view did not appear to be in conformity with the legislative intent to the learned referring Judge and that is how as indicated above, the matter has come before us.
3. At first flush, the view taken by various Courts in the decisons referred to above appears to be reasonable. Logic of the view as culled out from the decision is that there is no subsisting cause of action for filing an appeal, until a complaint has been actually made. The controversy centring round the period of limitation did not only relate to the starting point, and there was also a conflict of opinion on the question of forum of appeal. Some Courts had observed that an appeal Under Section 341 of the Code from the Court of a subordinate Civil Court, lay to superior Courts and was to be dealt with as a civil appeal from order regulated under the provisions of Order 43 of the Code of Civil Procedure, 1906 (in short the 'CPC') Some other Courts took the view that procedure of an appeal under this section must be governed by the Code irrespective Of whether the trial Court be a civil, criminal or revenue Court. We are of the view that appeal Under Section 341 is entirely a creature of, and governed by, the provisions of the Code and as such has nothing to do with the provisions of the CPC. By enactment of Sub-section (2) which makes the order final, the controversy appears to have been set at rest. For the purpose of limitation, an appeal under this section is an appeal under the Code, within the meaning of Art. 115;b) of the Indian Limitation Act, 1963. Section 340 of the Code corresponds to Section 476 (i) and 476-A of the Code of 1898. The present Sub-section (1) reproduces the provisions of Section 476(1) whereas provisions of Section 476-A without variation of substance has been engrafted into Section 340. Section 476-B of the old Code is similarly reproduced without substantial change in Section 341(1) of the Code.
4. Section 340 does not refer to the expression "order". A reference to Sub-section (2) of Section 341 makes it clear that various stages as enumerated in Clauses (a) to (e) of Sub-section (1) and Sub-section (2) are to be crystalised into an order which is mandated to be final and not subject to revision except where an order Under Section 341 has been made; which obviously is in some cases supplemental and in some cases in supersession of the order Under Section 340. To find out what is purport of the "order" Under Section 340, it has to be kept in mind that an appeal Under Section 341 in essence and sub- stance contains challenges to the decision to make a complaint which is triable by a Magistrate of the first class having jurisdiction. The complaint initiates an enquiry whether any offence referred to in Clause (b) Sub-section (1) of Section 195 has been committed. Making of a complaint in writing in a sequel to the recording of a finding that an offence as referred to above appears to have been committed. Such act is merely consequential, and an administrative act. No appeal can be made against the complaint; without attacking the findings recorded, which form the foundation. As indicated above, two categories of appeals are provided; one where there has been refusal to make a complaint, and the other when complaint has been made. The view that the period runs from the date of making of the complaint does not take note of the fact, that there is another category of appeal provided in Section 341 which deals with refusal to make a complaint. Since there is no complaint in existence in such a case, the question of period of limitation starting from the date of complaint does not arise. Can it be said that there are two periods of limitation relating to Section 341 The answer is an emphatic no. Making of a complaint being a consequential act, which is dependent on the recording of a finding, as discussed in detail by us, logical conclusion would be that the period of limitation starts from the date on which a finding is recorded to the effect that an offence appears to have been committed. However, there are certain difficulties which arise if this view is taken. For example, difficulty may arise when the com- plaint itself is made after the period of limitation prescribed under Art. 115 (b) of the Limitation Act. Can it be said that the appeal is competent even when there was no complaint in existence. This hyper technical difficulty can be overcome if the appeal is reckoned to be effective after .actual complaint is filed. This difficulty can also be overcome, if the Court concerned makes a complaint in writing, on the very date when it records a finding regarding desirability to make a complaint in view of prima facie view regarding commission of an offence or within a reasonable time advisably within a week. All the functions enumerated in Clauses (a) to (e) of Sub-section (!) can be undertaken on the same day or within a1 reasonable time, if any other view is taken, that would frustrate the legislative intent of providing an appeal, by making it dependent on the fortuitous circumstance of making a complaint which is merely an. administrative act. It is also argued that under Sub-section (1) of Section 340 the person against whom a com- plaint is sought to be made is not necessarily noticed and therefore, may have no knowledge about the conclusion. Suffice it would to say that even though not statutorily explained a party against which a complaint is sought to be made has to be noticed and to be given an opportunity of effectively participating in the proceeding by application of salutary principles of natural justice.
5. Coming to the facts of the case, the date of conclusion regarding desirability of making a complaint is 3-3-1989. The master was directed to be called on 1U-3-1989 for filing the complaint petition. Since complaint was not sent:, it was adjourned from time to time and finally on 31-3 89 complaint petition was ready. lt was directed to be sent to the Sub-divisional Judicial Magistrate, Bhadrak (in short the 'SDJM') along with certain documents. It reached the learned SDJM on 4-4-1389, The appeal before this Court has been fifed on 8-9-1989. It is submitted that limitation runs from the date of receipt of complaint by the learned SDJM, i.e., 4-4-1989. It is also submitted that even thereafter, there has been delay in presentation because the Court was closed for summer vacation from 15-5-1989 to 17-6-1989, and the counsel who was entrusted with the brief committed suicide on 8-6-1989 and thereafter there was nobody to trace the records and ultimately when the records were available, immediately the appeal was filed. In view of our conclusions above, we unhesitatingly reject the plea that the limitation runs from 4-4-1989. Further, certified copy of order filed shows that the same was delivered to the applicant on 17-7-1989. Even if the plea regarding delayed presentation on account of closure of Courts for summer vacation and unfortunate demise of the concerned Advocate is accepted, there is no explanation for not taking steps between the period from 17-7-1989 till 8-9-1989 On that score also, the appeal is not maintainable.
6. In conclusion, we hold that starting point of limitation of appeal Under Section 341 of the Code is the date on which the Court records a conclusion that there appears to be commission of offence under Clause(b) of Sub-sec, (I) of Section 195. The view taken by this Court in Banamali Bhadra's case (supra) though not directly on the point, contains observations relating to the starting point of limitation, which -are not correct in view of our conclusions. Reference made is accepted.
The criminal appeal is accordingly dismissed as barred by limitation.
S.C. Mohapatra, J.
7. I agree.