Balkrishna vs Madhusudan and Others

S.K. Pande, J.

Arguments heard.

In Execution Case No. 17-A/02, ADJ, Khurai vide order dated 31-8-2004 allowing application u/s 195, Cr.PC directed filing of complaint against the appellant under Sections 192, 198, 432, 464, 466, 469, 479, 120B, IPC. The present appeal is directed against the order aforesaid passed in Execution Case No. 17-A/02.

Under Section 341, Cr.PC an appeal lies against the order said to have been passed by any Court exercising jurisdiction u/s 340, Cr.PC. The present appeal although one u/s 341 has been preferred as a Misc. Civil Appeal arising out of the impugned order dated 31-8-2004.

In Sambhu Nath Sadhukhan Vs. Maghesh Kumar Sadhukhan and Others, , it has been held :

"It can not be said that since the power of the Civil Court u/s 476 or 476B emanates from the Code of Criminal Procedure it must be governed by the Code of Criminal Procedure. It is undoubtedly true that the power to entertain the application of the appeal is derived from the Code of Criminal Procedure but that does not necessarily mean that it has to be governed by the Code of Criminal Procedure and not by the procedure of the Court itself. Sections 476 and 476-B decide the forum and the character of the Court. So long the Court is not forced to change its character by express provision it must maintain its own character and own Code. Since entertainment of an application u/s 476 of the Code of Criminal Procedure till its disposal, either by rejection or by filing a complaint as provided for rein, the proceeding before a Civil Court continues to be a civil proceeding."

Section 340 to be read with Section 195(3), Cr.PC. In Clause (b) of Sub-section (i) the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purpose of this Section.

In Dhup Narain Singh Vs. The State, , it has been held that the Court directing initiation of proceedings in exercise of power u/s 340, Cr.PC (old 476) can not be said to be a Civil Court. Therefore, an appeal u/s 341 must be governed by the provisions of Criminal Procedure Code only. As such appeal against the impugned order said to have been passed u/s 340 shall be deemed to be a criminal appeal u/s 341, Cr.PC. The procedure laid down for a miscellaneous appeal under Order 43 Rule 1, CPC would not be applicable even if the order filing a criminal complaint has been passed by a Civil Court.

The appeal arising out of impugned order dated 31-8-04 already has been presented with reference to Section 341, Cr.PC. The office is directed to register it as a criminal appeal u/s 341, Cr.PC. Thereafter list with Criminal Appeal No. 2118/2004.