REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 452 OF 2002

K. Sudhakaran  ..Appellant

Versus

State of Kerala    ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Kerala High Court allowing the Revision Petition filed by the State.

Challenge  before  the  High  Court  was  to  the  order  dated  20.11.1998  in

Criminal M.C. No.2081 of 1997 passed by learned First Additional Sessions

Judge, Trivandrum. The issue related to the scope and ambit of Section 341

of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The High

Court examined the question as to whether a person who had not filed an

application  as  required  under  Section  340  of  Code  could  file  an  appeal

under Section 341 of the Code. The High Court held that a person who had

not  filed  complaint  and  the  proceedings  were  initiated  suo  motu  by  the

Court  could  not  file  an  appeal.  But  held  that  a  revision  petition  was

maintainable.  It  is  latter  part  of  the  revision  petition  order  relating  to

maintainability before the High Court which is under challenge.  

2. Learned counsel for the appellant submitted that the scope and ambit

of sub-section (2) of Section 341 has been completely lost sight of by the

High Court.  

3. Learned counsel for the respondent on the other hand submitted that

the appellant is taking varying stands at different points of time and in the

order impugned before the High Court not only the parameters of Section

340 and 341 were under consideration but also the other relevant aspects.   

4. Section 341 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 95, and the superior Court may thereupon,  after  notice  to  the  parties  concerned,  direct

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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.”

5. A bare reading of the provisions makes it clear that an appeal under

Section 341 can be filed by any person on whose application the Court other

than the High Court refused to make a complaint under sub-section (1) or

sub-section (2) of Section 340. The other person who can file an appeal is

one  against  whom  such  a  complaint  has  been  made  by  such  Court.

Undisputedly, the present case was one where the initiation was suo motu

by the High Court. The effect of decision of the Court which took suo motu

action not to proceed further appears to have kept in mind by the legislature

while enacting Section 341(1). Sub-section (2) of Section 341 is relevant for

the purpose of this case. It states that an order under Section 341 and subject

to any such order, an order under Section 340 shall be final and shall not be

subject to revision. In other words there is legal embargo created on filing a

revision  in  respect  of  an  order  under  Section  340  which  cannot  be  the

subject matter of challenge. Undisputedly, what was challenged before the

High Court was an order under Section 340 by the State of Kerala. The High

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Court was justified in holding that no appeal can be filed by the State under

Section  341  of  the  Act.  But  its  conclusions  about  maintainability  of  the

revision are indefensible in view of the clear language of sub-section (2) of

Section 341.  It appears that the High Court has made certain observations

against  the  officers  which  do  not  in  our  view  warrant  interference.

Therefore,  the  impugned  order  of  the  High  Court  regarding  the

maintainability of the revision stands set aside.  

6. The appeal is allowed to the aforesaid extent.       

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 05, 2009

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