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IN THE MADURAI BENCH OF MADRAS HIGH COURT
S. NAGAMUTHU, J.
K. Gopalram – Appellant
Versus
A. Muthumari – Respondent
Crl.A. (MD) No. 97 of 2015
Decided On : 08-04-2015
Section 340(1) - Appeal - 341 Cr.P.C. - Section 195(4) - Indian Penal Code - Suppression of facts - Maintainability of appeal before the Court - Dismissal of appeal
Fact of the Case:
The appellant filed for divorce and the respondent filed for interim alimony. The appellant alleged that the respondent suppressed vital facts to obtain specific orders from the Court, constituting an offence under Section 195 of the Indian Penal Code. The appellant filed a petition requesting the Court to make a complaint under Section 340(1) of the Code of Criminal Procedure, which was dismissed by the Judicial Magistrate. The appellant appealed against this dismissal.
Finding of the Court:
The Court raised doubts about the maintainability of the appeal before this Court and found that the appeal was not maintainable as it should have been filed before the District Judge or the Sessions Judge, not before the current Court.
Issues: Maintainability of the appeal before the Court
Ratio Decidendi: The Court determined that the appeal was not maintainable before the current Court as it should have been filed before the District Judge or the Sessions Judge.
Final Decision: The appeal was dismissed as not maintainable, with liberty to the appellant to approach the appropriate Court for relief, if so advised.
1. Challenging the order of the Principle Subordinate Judge, Karur, made in I.A.No.55 of 2014 in I.A.No.96 of 2010 in HMOP No.131 of 2009, the appellant has come up with this appeal.
2. The facts of the case in brief would be as follows:
The appellant has filed HMOP No.131 of 2009 before the learned Subordinate Judge, Karur for divorce. One Mrs. A. Muthumari is the respondent in the HMOP. In that petition, Mrs. Muthumari had filed I.A.No.96 of 2010 for interim alimony. During the said proceedings, it is alleged that Mrs. Muthumari had suppressed certain vital facts, so as to get specific orders from the Court. This, according to the appellant, amounts to offence punishable under Section 195 of the Indian Penal Code. On these allegations, he filed I.A.No.55 of 2014 before the learned Principal Subordinate Judge, Karur requesting the Court to make a complaint under Section 340(1) of the Code of Criminal Procedure to the jurisdictional Magistrate against Mrs. Muthumari in respect of the above alleged offence committed by her. The learned Judicial Magistrate dismissed the said petition by order dated 30.04.2014. As against the same, the appellant has come up with this appeal.
3. This appeal has come up today for admission.
4. The appellant appeared in person. I have heard him and I have also heard Mr.K.Gokul, who has made appearance for the respondent.
5. I have also perused the records carefully.
6. At the outset, this Court raised a doubt about the maintainability of this appeal before this Court and invited the appellant as well as the learned counsel for the respondent to address argument on the said legal issue. The appellant is not in a position to explain to the Court as to how the appeal is maintainable before this Court. The learned counsel for the respondent would, however, submit that this appeal is not maintainable before this Court at all. This legal issue requires some more elaboration.
7. A right of appeal is a statutory right. So far as an order refusing to make the complaint under Section 340(1) of the Code of Criminal Procedure is concerned, such right of appeal has been given to the party aggrieved under Section 341 of the Code.
8. Section 341 Cr.P.C. 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) of 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, any 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.”
9. A reading of the above provision would make it very clear that such appeal would lie only to the Court to which such former Court is subordinate within the meaning of Sub Section (4) of Section 195.
10. Section 195(4) of the Code of Criminal Procedure reads as follows:
“(4) For the purposes of clause (b) of sub-section (1), a Court shall have deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Courts having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that -
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate:
(b) where appeals lie to a civil and also to a revenue Court, such Court shall be deemed to be subord
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