PRAHALLAD MALLIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) An interesting point relating to the starting period of limitation for filing an appeal under S. 341 of the Cr.P.C., 1973 (in short the 'Code') is involved in this appeal. This has come before us being referred by a single Judge, who felt that the position was fluid notwithstanding a long catena of decisions holding the field for more than half a century. After we clear the cob-web of the legal controversy, we shall refer to the factual aspect.

(2.) An appeal under S. 341 of the Code can be filed provided the contingencies prescribed therein are present. The first category covers appeal by a person, who had made an application in a Court other than a High Court, praying for a complaint under sub-sections (1) and (2) of S. 340 which has been refused. The other category covers an appeal by a person against whom such a complaint has been made by such Court. In either event, the person concerned has the option of filing an appeal to the Court to which such former Court is subordinate within the meaning of sub-sec. (4) of S. 195 of the Code. S. 340 lays down that an application being made in this behalf or otherwise, if any Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Cl. (b) of sub-sec. (1) of S. 195 which appears to have been committed in relation to a procedure in any 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 enquiry, if any, as it thinks necessary, record a finding to that effect; make a complaint in writing, send it to a Magistrate, first class, having jurisdiction. Additionally, it has been mandated that sufficient security for appearance of the accused before the concerned Magistrate has to be taken, of if the alleged offence is non-bailable and if the Court thinks it necessary sand the accused in custody to such Magistrate; bind over any person to appear and give evidence before such Magistrate. Many of the High Courts are almost unanimous in their conclusions that the starting point for filing an appeal runs from the date of the complaint and not from the date of recording of the finding, that is, the date of the order directing making of the complaint. Some of these decisions are: AIR 1927 Lahore 54 : (1926 (27) Cri LJ 1321), Fitholmes v. The Crown; AIR 1928 Bom 64 : (1928 (29) Cri LJ 315, Daga Devji Patil v. Emperor; AIR 1929 Cal 521 : (1929 (30) Cri LJ 974), Ramjan Ali v. Moolji Sika and Co.; AIR 1930 Rangoon 201 : (1930 (31) Cri LJ 793, K.C.V. Reddy v. Emperor; AIR 1935 Nag 199 : (1935 (36) Cri LJ 1371, Bal Govind v. Jamnabai; AIR 1943 Sind 157: (1944 (45) Cri LJ 76), (Naraindas V. Gidwani v. Emperor; AIR 1955 Trav-Co 226 : (1955 Cri LJ 1404, Velayudhan Pillai Kesava Pillai v. Travancore Cochin State; AIR 1955 Mad 129 : (1955 Cri LJ 514), In. re. T. Subramani Achari; AIR 1964 All 225 : (1954 Cri LJ 482, Mohammad Illias v. State of U.P.; 1957 All LJ 17, Jagan Prasad v. State; 1957 All LJ 953, Sundarial v. Badri Prasad; AIR 1959 All 529 : (1959 Cri LJ 1032), Ram Prasad Singh v. State; AIR 1963 All 352 : (1963 (2) Cri LJ 113), Ramghadra Soti v. State of Uttar Pradesh; AIR 1968 All 296 : (1968 Cri LJ 1218) (FB), Chhajoo v. Padhey Shyam, AIR 1965 Raj 224 : (1965 (2) Cri LJ 801, Bahaduramal v. The State; AIR 1968 Pat 100 : (1968 Cri LJ 354) (FB), Mt. Rampiti Kuar v. Jadunadan Thakur and (1966) 32 Cut LT 290, Bangamali Bhadra v. Jadunath Pradhan. Their view did not appear to be in conformity with the legislative intent to the learned referring Judge and that is how as indicated above, the matter has come before US.

(3.) At first flush, the view taken by various Courts in the decisions referred to above appears to be reasonable. Logic of the view as culled out from the decision is that there is no subsisting cause of action for filing an appeal, until a complaint has been actually made. The controversy centring round the period of limitation did not only relates to the starting point, and there was also a conflict of opinion on the question of forum of appeal. Some Courts had observed that an appeal under S. 341 of the Code from the Court of a subordinate Civil Court, lay to superior Courts and was to be dealt with as a civil appeal from order regulated under the provisions of O. 43 of the Civil P. C., 1908 (in short the 'CPC'). Some other courts took the view that procedure of an appeal under this section must be governed by the Code irrespective of whether the trial Court be a Civil, Criminal or Revenue Court. We are of the view that appeal under S. 341 is entirely a creature of, and governed by, the provisions of the Code and as such has nothing to do with the provisions of the C. P. C. By enactment of sub- sec.(2) which makes the order final, the controversy appears to have been not at rest. For the purpose of limitation, an appeal under this section is an appeal under the Code, within the meaning of Art. 115 (b) of the Limitation Act, 1963. S. 340 of the Code corresponds to S. 476(1) and 476-A of the Code of 1898. The present sub-sec. (1) reproduces the provisions of 9. 476(1) whereas provisions of S. 476A without variation of substance has been engrafted into S. 340. S. 476B of the old Code is similarly reproduced without substantial change in S. 341(1) of the Code.