No appeal lies against an order passed by a High Court under Section 340 of the Code of Criminal Procedure, 1973.

1. THIS is an appeal against an order passed on September 25, 1974 by A. K. De, J. in Suit No. 3069 of 1956 in the Ordinary Original Civil Jurisdiction of this Court rejecting an application filed by the appellant under Section 476 of the code of Criminal Procedure read with Section 195 of the Code now under Sections 195 and 340 of the Code (1973.

2. NANDARANI Dasi, mother of the appellant, filed the suit for recovery of money due on a mortgage. She signed the plaint and the Warrant of Attorney in English as she used to sign her name mostly in English. She got a final decree. She put up for sale the mortgaged properties. In that connection a petition purportedly signed by Nandarani Dasi was filed on 1st of March 1960. The defendants of the suit made an application on 25th July for setting aside the Court's order made on Nandarani's petition. An affidavit-in-opposition was filed on 3rd of August 1960. Nandarani Dasi died on 24th December, 1970. The petitioner on going through the record on 3rd of September 1971 detected that various criminal offences had been committed in the said suit by his brother Murari, his father Kashinath and Murari's wife Nandita, and as such an application as stated above was filled with a prayer that after an enquiry the Court would be pleased to make a complaint in writing against Nandita under Section 205 of the Indian Penal Code, against Nandita, Kashinath and Murari under Section 205/120b of the Indian Penal Code for committing an offence under Section 205 and against Kashinath and Murari under Section 205/109 of the Indian Penal Code to abet the commission of the said offence It is stated in the petition that Nandita falsely personated Nandarani Dasi before the Court interpreter Sri Sur when the affidavit-in-opposition was sworn on 3rd of August, 1960, that Nandarani Dasi did not make the affidavit-in-opposition, that she did not sign and that the signature on it in Bengali was made by Nandita. It is further stated that the three opposite parties entered into a criminal conspiracy to commit that offence and that the opposite parties Nos. 1 and 2 abetted her to commit the same. On this application a Rule was issued. The opposite parties entered appearance to oppose the Rule but did not file any affidavit-in-opposition.

The learned Judge after considering the facts and circumstances of the case and the statements made in the petition was of the opinion that it was not expedient in the interest of justice to make an inquiry into the offences alleged to have been committed by the opposite parties or by any of them. He was of further opinion that neither the statements in the affidavit of the petitioner nor the documents, placed during the hearing made out any case for making a complaint for an offence either under Section 205 or under Section 205/109 or under Section 205/120b of the Indian Penal Code. In that view of his finding the learned Judge discharged the Rule. . Being aggrieved, this appeal has been filed.

3. MR. Dilip Kumar Dutt, learned Advocate appearing on behalf of the, respondents takes a preliminary objection regarding maintainability of the appeal. Mr. Dutt contends that against an order passed by a High Court under section 340 of the Code of Criminal Procedure 1978 no appeal lies. Section 341 lays down the provisions where an appeal lies against an order passed under Section 340. Section 341 reads as follows:-

"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, on 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-sec. (4) section 195. "

4. MR. Dutt draws our attention to Section 476b of the Old Code where it was provided that:

"any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under Section 476 or Section 476 A, or against- wh