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9. Learned counsel for the first respondent then took the contention that the appeal was not maintainable. Counsel relied on Section 341 of the Code of Criminal Procedure for this purpose. Section 341 of the Code of Criminal Procedure states as follows:

341. 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.

The contention is that since Section 341 of the Code of Criminal Procedure mentions only the applications filed before any Court other than a High Court, any order passed by a learned single Judge of the High Court cannot be appealed against. This shows that the Legislature has not provided any remedy by way of appeal against orders passed under Section 340 of the Code of Criminal Procedure, by the High Court. He further relied on the decision of the Supreme Court in AIR 1978 SC 290 : (1978 Cri LJ 339). Learned counsel for the appellant submitted that merely because Section 341 of the Code of Criminal Procedure states that an appeal lies to the superior Court against the order passed by any Court other than High Court, it does not mean that no appeal is maintainable against the orders passed under Section 340 of the Code of Criminal Procedure. Learned counsel then referred to Section 5 of the Kerala High Court Act, which provides for appeal from judgment and order of a learned single Judge. He submitted that so far as the present case is concerned, it will come under Section 5(i) of the Kerala High Court Act, viz., appeal shall lie before a Bench of two Judges from the judgment and order of a learned single Judge in the exercise of original jurisdiction. Learned counsel further contended that the proceedings under Section 340 of the Code of Criminal Procedure were exercised in proceedings under Article 226 of the Constitution of India. In the original jurisdiction exercised by the learned single Judge, the impugned order is passed and hence an appeal will lie against that order. Learned counsel for the first respondent tried to submit that the proceedings are criminal in nature and under Section 5 of the Kerala High Court Act, an appeal will lie against an order passed in the criminal jurisdiction.

14. Learned counsel for the first respondent brought to our notice the decision of a Division Bench of the Karnataka High Court reported in Channappa v. Basappa (1984) 1 Kant LJ 204 : (1984 Cri LJ NOC 110). There also, a similar question arose. Appellant in that case contended that an appeal will lie under Section 4 of the Karnataka High Court Act. The Division Bench took the view that an appeal under Section 4 of the Karnataka High Court would lie against only such orders of the learned single Judge which has the effect of affecting the rights and liabilities of the parties. An appeal would not lie under Section 4 of the act against each and every order of the single Judge. The ultimate order or direction to be issued under Section 340(1) is either to make a complaint or not to make a complaint. Against such a direction, an appeal lies to the superior Court under Section 341(1) of the Code if such order or direction is made by a Court other than the High Court. The only effect of the order under Section 340 of the Code, is to direct a complaint being lodged or to take a decision not to lodge a complaint. Such a direction, does not have the effect of affecting the rights or liabilities of the parties. With great respect, we don't agree with the reasoning given by the Division Bench. According to us, the observations made by the Division Bench of the Karnataka High Court is not in consonance with the observations made by the Full Bench of this Court in the decision reported in K.S. Das v. State of Kerala (1992) 2 Ker LT 358. We cannot agree with the Division Bench that the order passed under Section 341 of the Code of Criminal Procedure does not curtail the rights of the parties. As already stated, we fail to understand how this does not affect the rights of the parties particularly when such an order is passed by a Subordinate Court, an appeal is provided against such order. This itself shows that the order has affected the parties and that is why an appeal is provided. Another decision that was cited by the learned counsel for the first respondent was the decision in Pashupathi Nath De v. Murari Mohan De (1977) 81 Cal WN 762. In the above decision in paragraph 5 the Calcutta High Court held that the words 'other than a High Court' have been introduced in Section 341 of the new Code and as such it is clear that under the new Code no appeal lies against an order passed by a Judge of this Court on an application under Section 340. The new Code came into force from April 1, 1974 and the application under Section 340 was filed on 28th of May, 1974. There is therefore no doubt that an appeal against an order passed on such application will be governed by the provisions of the new Code. After this, the Division Bench considered the question whether an appeal would lie under Clause 15 of the Letters Patent. The Division Bench, relying on the decision of the Supreme Court in South Asia Industries v. Swarup Singh AIR 1965 SC 1442 held that irrespective of any provision in Clauses 15 of the Letters Patent no appeal will lie against an order passed by a Judge on an application under Section 340 of the Code. We do not agree with the above view. In the decision reported in South Asia Industries v. Swarup Singh AIR 1965 SC 1442 the Supreme Court observed thus:

21. Learned counsel for the first respondent then contended that even though the matter arose in proceedings under Article 226 of the Constitution of India, the jurisdiction exercised by the learned single Judge is under Section 340 of the Code of Criminal Procedure. Hence, an appeal will not lie. We do not find any basis for this contention. According to us, merely because a provision under Section 340 of the Code of Criminal Procedure was being considered, the jurisdiction exercised by the Court cannot be said to be criminal jurisdiction. The offences cannot be tried without a complaint from the Court and before sending such complaint under Section 340 the Court has to be satisfied that a prima facie case has been made. It may arise in Criminal Court, Civil Court, Revenue Court or Tribunal. Merely because such proceedings are under Section 340 of the Code of Criminal Procedure, it cannot be said that what was being exercised is criminal jurisdiction. We are supported by the provisions under Section 341 of the Code of Criminal Procedure itself. According to Section 341 of the Code of Criminal Procedure, an order passed under Section 340 of the Code of Criminal Procedure by a Court other than a High Court, then an appeal lies to the Court to which ordinary appeal lies from such Court. Thus, if an order is passed under Section 340 of the Code of Criminal Procedure by a Munsiff's Court, appeal will lie to the District Court. But on the other hand, if such proceedings are taken before a Chief Judicial Magistrate, it lies to the Sessions Court. According to us, the proceedings are tainted with the colour of jurisdiction of the Court in which proceedings arise. ,