Rasul Ibrahim Bin Musa Haji vs State Of Gujarat

A.J. Desai, J

As per the order dated 23.07.2019 passed by the Hon'ble Acting Chief Justice, present matter has been listed for appropriate order.

The controversy in the proceedings is that the defendant Nos. 2 and 3 created false and concocted pedigree (pedhinama) in collusion with the Talati Cum Mantri and filed the same in the Court proceedings being Regular Civil Suit No. 123 of 2017, which led the applicants to make request to file complaint pursuant to the provisions contained under Section 195(1)(b) of the Code of Criminal Procedure. The learned Additional Senior Civil Judge, Halol rejected the application below Exh. 40 in Regular Civil Suit No. 123 of 2017 by passing order dated 01.01.2019.

I have gone through the decision in case of Gujarat Pipavav Limited v. Sharda Steel Corporation reported in 2012 (3) GLH 155 as well as an unreported decision in case of Viththalkumar Vanmalidas Vyas v. Shardaben Yashvantlal Vyas passed on 12.09.2011 in Special Civil Application No. 7125 of 2011 and considering the fact that combined reading of Section 195(1)(b) of the Code and Section 340 of the Code, I am an of the opinion that present petition would not be maintainable in view of the provision of Section 341 of the Code, which provides to file appeal and for the petitioner, the remedy to file appeal u/s. 341 of the Code is available.

Section 341 of the Code reads as under:

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 (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."

Considering the fact that the present petition would not be maintainable in view of the provision of Section 341 of the Code, which provides to file appeal and the petitioner has a remedy to file appeal u/s. 341 of the Code and therefore, the petitioner may prefer appeal under Section 341 of the Code. If such appeal is filed within a period of four weeks from today, the Appellate Court, before whom, the Appeal is filed challenging the impugned orders passed by the Tribunal, the Appellate Court shall decide the same on its own merits and shall not dismiss only on the ground of delay in filing such appeal.

It is hereby made clear that this Court has not gone into the merits of the case.

In view of the above present petition stands disposed of.