K. Sudhakaran vs State Of Kerala

K. Sudhakaran ..Appellant

Versus

State of Kerala ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Kerala High Court allowing the Revision Petition filed by the State.

Challenge before the High Court was to the order dated 20.11.1998 in

Criminal M.C. No.2081 of 1997 passed by learned First Additional Sessions

Judge, Trivandrum. The issue related to the scope and ambit of Section 341

of the Code of Criminal Procedure, 1973 (in short the `Code'). The High

Court examined the question as to whether a person who had not filed an

application as required under Section 340 of Code could file an appeal under Section 341 of the Code. The High Court held that a person who had

not filed complaint and the proceedings were initiated suo motu by the

Court could not file an appeal. But held that a revision petition was

maintainable. It is latter part of the revision petition order relating to

maintainability before the High Court which is under challenge.

2. Learned counsel for the appellant submitted that the scope and ambit

of sub-section (2) of Section 341 has been completely lost sight of by the

High Court.

3. Learned counsel for the respondent on the other hand submitted that

the appellant is taking varying stands at different points of time and in the

order impugned before the High Court not only the parameters of Section

340 and 341 were under consideration but also the other relevant aspects.

4. Section 341 reads 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 95, and the superior Court may thereupon, after notice to the parties concerned, direct

2 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."

5. A bare reading of the provisions makes it clear that an appeal under

Section 341 can be filed by any person on whose application the Court other

than the High Court refused to make a complaint under sub-section (1) or

sub-section (2) of Section 340. The other person who can file an appeal is

one against whom such a complaint has been made by such Court.

Undisputedly, the present case was one where the initiation was suo motu

by the High Court. The effect of decision of the Court which took suo motu

action not to proceed further appears to have kept in mind by the legislature

while enacting Section 341(1). Sub-section (2) of Section 341 is relevant for

the purpose of this case. It states that an order under Section 341 and subject

to any such order, an order under Section 340 shall be final and shall not be

subject to revision. In other words there is legal embargo created on filing a

revision in respect of an order under Section 340 which cannot be the

subject matter of challenge. Undisputedly, what was challenged before the

High Court was an order under Section 340 by the State of Kerala. The High

3 Court was justified in holding that no appeal can be filed by the State under

Section 341 of the Act. But its conclusions about maintainability of the

revision are indefensible in view of the clear language of sub-section (2) of

Section 341. It appears that the High Court has made certain observations

against the officers which do not in our view warrant interference.

Therefore, the impugned order of the High Court regarding the

maintainability of the revision stands set aside.

6. The appeal is allowed to the aforesaid extent.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY) New Delhi, February 05, 2009

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