Appeals concerning Section 340 CrPC from civil courts are civil in nature, leading to abatement upon death of the appellant unless legal heirs are substituted.

ORDER

The father of the petitioner was the plaintiff in a suit on the file of a Sub Judge. He filed an application under Section 340 CrPC, which was dismissed by the learned Sub Judge. He filed an appeal under Section 341 CrPC. During the pendency of the appeal he died. The petitioner filed Annexure B application to permit him to prosecute the appeal. The appellate court did not pass any orders on it. But in the appeal it recorded: “Appellant died on 27/01/2018. So ('see'?) the memo filed. No legal heirs impleaded. Hence appeal abated”

(sic). The order is sought to be set aside.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Though notice was issued to the first respondent, he has not entered appearance.

3. The petitioner's father filed the application under Section 340 CrPC. It was taken on the file of the Sub Judge as an interlocutory application. The appeal against the order passed in it was taken on the file of the learned District Judge as a Civil Miscellaneous Appeal. The order passed in it is challenged in this Petition filed under Section 482 CrPC. The Registry of this Court doubted the maintainability of the Petition under Section 482 of the Code. The Petition was taken on file subject to the direction that its maintainability would be heard later.

4. Shri. Vipin Narayan, learned counsel for the petitioner submits that the proceedings under 340 of the Code is a criminal proceeding and the application filed under that provision should have been numbered as a Criminal Miscellaneous Petition and the appeal challenging the order passed in it should have been considered a Criminal Appeal before the District Court. Learned counsel submits that merely because the proceedings arose from a civil case, it cannot be considered a Civil Appeal, it should have been registered as a Criminal Appeal and being an appeal under Cr.PC it will not abate on the death of the applicant since there is no provision in the Code for abatement of such appeal. He has referred me to Section 394 of the Code. He further submits that the petition filed under Section 482 of the Code is maintainable.

5. Shri. Vipin Narayan has brought to my notice the provision in Rule 66 of the Criminal Rules of the practice, which is extracted below:

“Every application under Section 340 of the Code shall be registered as a Criminal Miscellaneous Petition”

6. To answer the question involved in the case the provisions in Sections 195,340 and 341 of the Criminal Procedure Code should be read together. For a Magistrate to take cognizance of the offences referred to in Section 195 CrPC, one of which falls under Section 193 IPC, a complaint by the Court in which the proceedings in relation to which the offence was committed were pending is mandatory. The offence under Section 193 IPC finds place in Clause (b)(i) in Sub Section (1) in Section 195 CrPC.

7. Section 340 Cr.PC prescribes the procedure to be followed in the cases mentioned in Section 195. The application should be filed in the court in which the proceedings in relation to which the offence was committed were pending. Sub Section (4) in Section (340) provides that in this Section Court has the same meaning as in Section 195.

8. Section 341 of the Code 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, 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 the 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