IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.MC.No. 245 of 2009(A) --------------------------------- CRA.9/2008 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI .................... PETITIONER(S): APPELLANT -------------------------------- JOSE, S/O.LATE KUNNUMPURATH MATHEW, PAYYANAD AMSOM, DESOM IN ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.K.AJITH KUMAR RESPONDENT(S)/ RESPONDENTS : ---------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VIJAYAN, S/O.PULIKKOTTIL LAKSHMI AMMA, MANJERI AMSOM DESOM, ERNAD TALUK, MANJERI (PO), MALAPPURAM DISTRICT. 3. SREELATHA, D/O.SANTHAKUMARI AMMA, PULIKKOTTIL, MANJERI AMSOM AND DESOM, MANJERI (PO), MALAPPURAM DISTRICT. 4. VIJAYALAKSHMI, D/O.PULIKKOTTIL LAKSHMI KUTTY AMMA, MANJERI AMSOM DESOM, MANJERI (PO), MALAPPURAM DISTRICT. ADV. SRI.T.SETHUMADHAVAN FOR R2-4 PUBLIC PROSECUTOR SRI. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRL.M.C. NO. 245 OF 2009 = = = = = = = = = = = = = = = Dated this the 24th day of March, 2009. O R D E R This petition is filed with a prayer to quash the judgment shown as Annexure D and E. Annexure D is an order rendered on a petition filed u/s 195 and 340 Cr.P.C. thereby the learned Munsiff of Manjeri decided to file a complaint and to forward the same to the Judicial First Class Magistrate-I, Manjeri for further action. It was challenged in appeal on the criminal side as Crl.A.9/08 and the learned Additional Sessions judge, Manjeri disposed of the Crl.A. holding that it is not maintainable. 2. Learned counsel for both sides heard. Now the provisions which deal with the appeal against the order passed by the Munsiff is S.341 of the Cr.P.C. S.341 is reproduced 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 Crl.M.C. 245 OF 2009 -:2:- 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 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.” 3. A reading of S.341 would make it clear that an order is passed invoking the provisions of S.340 Cr.P.C. by an officer sitting on the civil side and it has to be read with S.195(4) of the Cr.P.C. S.195(4) very clearly indicates that for the purpose of clause (b) of sub section (1) a Court shall be deemed to be subordinate to the Court which appeals ordinarily lie from appealable decrees or sentence of such former Court, or in the case of a civil Court from whose Crl.M.C. 245 OF 2009 -:3:- decrees decree no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction. So a reading of 195(4) and 341 together would indicate that when a matter is decided by a Munsiff Court and ordinarily an appeal will lie to the District Court and therefore an order passed u/s 340 of Cr.P.C. also can be appealed only before the District Court on the civil side. This Court in the decision reported in Jose Joseph v. Syndicate Bank (1997 (1) KLT 320) was considering the question whether an appeal in a case passed by a Subordinate Judge will lie to the District Court or to the High Court and held that depending upon the value of the subject matter an appeal will lie either in the District Court or in the High Court as the case may be. So far as our case is concerned it is an order passed by the Munsiff and an appeal will necessarily lie before the District Court. So the learned Sessions Judge was correct in holding that an appeal has to be filed before the District Court. Ordinarily the learned Sessions Judge should have returned the appeal for presentation before appropriate Court. But now as the time Crl.M.C. 245 OF 2009 -:4:- has elapsed I feel that when a civil appeal is filed, as there will be delay in filing the civil appeal, the time which has been spent on litigating on the criminal side including this Court may be considered as the delay that has been occasioned on account of improper legal advice and therefore the District Court can consider the delay condonation application sympathetically and pass appropriate orders. With this observation this Crl.M.C. is disposed of. M.N. KRISHNAN, JUDGE. ul/-