K. Sudhakaran Vs.
State of Kerala  INSC 213 (5 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 452 OF 2002 K.
Sudhakaran ..Appellant Versus State of Kerala ..Respondent
Dr. ARIJIT PASAYAT, J
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
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.
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.
341 reads as follows:
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."
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.
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 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.
impugned order of the High Court regarding the maintainability of the revision
stands set aside.
The appeal is allowed
to the aforesaid extent.
(Dr. ARIJIT PASAYAT)