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Judgment
D.P.S. Chauhan, J.
The order appealer against is the order dated 20.7.94 (Annexure-A 2 to the Memo of Appeal. This order is passed u/s 344, Cr. P.C. The appeal is styled as appeal u/s 341, Cr. P.C. The appeal could only be filed against the order passed u/s 340, Cr. P.C. The distinction between Sections 340 and 344, Cr. P.C. is that the order u/s 340, Cr. P.C. is appealable whereas the order u/s 344, Cr. P.C. is hot appealable.
Learned Counsel invited the attention of the Court to sub-section (2) of Section 344, Cr. P.C. and on that basis he treated the impugned order as order u/s 340, Cr. P.C. The submission is unsustainable. Sub-section (3) of Section 344. Cr. P.C. is extracted below :-
344 (3). Nothing in this section shall affect the power of the Court to make a complaint u/s 340 for the offence, where it does not choose to proceed under this section.
This section does not give the option to the litigant but it gives the option to the Court, if the Court does not choose to proceed u/s 344, Cr. P.C. then, the Court may proceed u/s 340, Cr. P.C. of course, if the case is covered u/s 340, Cr. P.C. Sub-section (4) of Section 344, Cr. P.C. does not provide for appeal, It only provides for stay of the proceedings of the appeal or revision which is directed against the judgment or order in which the opinion referred to in sub-section (1) of Section 344, has been formed.
The appeal is misconceived and is accordingly dismissed.