1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1240 OF 2009 Shashikant Madhav Shenoy & Anr. ..Petitioners versus Suresh Vithal Medhedkar & Anr. ..Respondents Mr. Vikas Shivarkar i/b. Mr. N. Nevshe for Petitioners. Mr. Nimish Desai for Respondent No. 1. Mrs. U. V. Kejariwal – APP for State. CORAM : S. A. BOBDE, J. DATED : 7TH OCTOBER, 2009. P.C. : 1. Rule, returnable forthwith. By consent taken up for final hearing. 2. The petitioner has challenged the order of the learned Sessions Judge allowing the appeal against the rejection of the prayer by a Magistrate for taking cognizance under Section 340 of the Criminal Procedure Code. The learned Sessions Judge has held that the case warranted initiation of proceedings under Section 340 of Cr.P.C. Having done so, the learned Sessions Judge directed the Metropolitan Magistrate to set aside the order rejecting the prayer for action under Section 340 of the Cr.P.C. and further 2 directed the Magistrate to take necessary steps under Section 340 of the Cr.P.C. It is the latter part of the order whereby the Sessions Judge has directed the Magistrate to take steps under Section 340 of the Cr.P.C. whereby the Sessions Judge has directed the Magistrate to take steps under Section 340 of the Cr.P.C., which is impugned in the present petition. Section 340 of the Cr.P.C. reads as follows: “340. Procedure in cases mentioned in section 195.- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. 3 (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this Court, “court” has the same meaning as in section 195.” On a plain reading of this Section, it is clear that the court which forms the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence which appears to have been committed in or in relation to a proceeding in that Court may make any of the orders referred to in sub paragraph (a) to (e) of sub section (1). Thus, where a subordinate court has rejected the application for taking action under Section 340 of the Cr.P.C. and the matter has been carried in appeal and the appellate court is of the view that circumstances warrant action under Section 340 of the 4 Cr.P.C. the appellate court must itself take the action under Section 340 of the Cr.P.C. on the basis that the entire application made before the lower court is open before the appellate court and the appellate court is deciding the application itself in appeal. The words “such court” occurring in sub section (1) of Section 340 will thus mean “appellate court” which is in appeal against the rejection of prayer for taking action. This is clear from Section 341 of the Cr.P.C. which reads as follows: “341. 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 (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.” 3. The law itself enjoins the appellate court to take action under Section 5 341 of Cr.P.C. and the provisions of Section 340 of Cr.P.C. are made applicable to such an action. The impugned order of the appellate court is hereby set aside. The matter is remanded back to the appellate court for taking further action under section 341 of Cr.P.C. in accordance with law. 4. Rule disposed of accordingly. (S. A. BOBDE, J.)