Court No. - 42
Case :- CRIMINAL APPEAL DEFECTIVE No. - 111 of 2019 Appellant :- Km. Divyani And Another Respondent :- State Of U.P. And Another Counsel for Appellant :- P.K. Singh Counsel for Respondent :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the appellants and perused the impugned order.
An application under Section 340 Cr.P.C. was moved before Court in which the Court had issued notice to appellants and as per Section 341 Cr.P.C., 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 195 Cr.P.C., and the superior may thereupon, after notice to parties concerned, direct the withdrawal of that complaint, or, as a case may be, making of the complaint which such former Court might have made under Section 340 Cr.P.C. and if it makes such complaint, the provision of that Section shall apply accordingly. Meaning thereby, the principal condition for filing appeal under Section 341 of Cr.P.C. is that the Court has refused to lodge a complaint upon the application of complainant then complainant will have right to file appeal under this Section or if the Court has lodged a complaint then the person against whom this complaint has been lodged will have to come under appeal under this Section, whereas in the present case neither the Court has refused to lodge a complaint nor has lodged the complaint against the appellant till now.
Hence, this proposed appeal is premature and notice have appeared before the Court and filed their objection, the Court is expected to observe the procedure under Section 340 Cr.P.C. and decide as to whether there is ground to lodge a complaint before the Magistrate or to refuse the lodging of complaint as prayed by applicant? Once order is passed then this right to file appeal under Section 341 Cr.P.C. will arise in favour of appellant.
Now there is no ground for condoning the delay because there is no delay, rather it is premature appeal. But the concerned Court is being directed to decide the application, notice issued in it and objection filed by appellants, within one month from the receipt of certified copy of this order to be placed before Court.
Order Date :- 31.1.2019 Kamarjahan