The petitioner herein is the 12th defendant in O.S No.518/1994 before the Munsiff's Court, Irinjalakkuda. During the proceeding he filed an application under Section 340 of the Code of Criminal Procedure for enquiry and action against the plaintiff and the other defendants. After enquiry, the learned Munsiff rejected the application and also directed the petitioner to pay a cost of ₹1,000/- to the respondents therein, under Section 342 of the Code of Criminal Procedure. Aggrieved by the said order, the petitioner preferred a Criminal Appeal before the Court of Session, Thrissur as Crl.A No.82/2014. At the initial stage nobody noticed that such an appeal is not maintainable. Section 341 of the Code of Criminal Procedure provides that any person aggrieved by an order under Section 340 of the Code of Criminal Procedure will have to file appeal to the court to which the court that passed orders is subordinate within the meaning O.P (Crl) No.279 of 2014 2 of Sub Section 4 of Section 195 of the Code of Criminal Procedure. This material aspect was found out by the learned Additional Session Judge, Thrissur when the appeal came up for hearing. Finding that Criminal Appeal is not maintainable against an order passed by a civil court under Section 340 of the Code of Criminal Procedure, the learned Additional Session Judge dismissed the appeal by judgment dated 7.11.2014. The said judgment is under challenge in this original petition brought under Article 227 of the Constitution of India.
2. The prayer sought in this proceeding is to set aside Ext.P4 judgment of the learned Additional Sessions Judge, and to remand the matter to the court below with direction to the registry to number the proceeding appropriately for disposal.
3. On hearing the learned counsel, I find that this original petition cannot be entertained under Article 227 of the Constitution of India. The petitioner wrongly filed an appeal before the wrong forum and obtained a judgment of dismissal. Though authorised under Section 340 of the Code of Criminal Procedure enquiry was conducted and decision was taken by the civil court. Section 340 of the Code of Criminal Procedure empowers any court including civil court to conduct enquiry as O.P (Crl) No.279 of 2014 3 provided therein and to make complaint before the proper court. A Criminal Appeal can be brought before the the Sessions Court under Section 341 of the Code of Criminal Procedure only against an order passed by the Criminal Court under Section 340 of the Code of Criminal Procedure. When such order is passed by the civil court, the proper remedy is to file appeal against the said order before the appellate court on the civil side. Instead of filing a Civil Miscellaneous Appeal (CMA) before the civil appellate forum the petitioner wrongly filed a Criminal Appeal before the Sessions Court. True, it is, that the person functioning in both the courts is the same. But the two forums are different. One is District Court and the other is Court of Session, though handled by the same person. The petitioner cannot find justification by saying that he has preferred appeal before the same person. Appeal should be filed before the court and not before the person. In this case appeal will have to be filed before the court to which appeals ordinarily lie from the appealable decrees of the Munsiff's Court, Iringalakkuda. I find that this Original Petition cannot be entertained, and it is liable to be dismissed without admission. However, it is made clear that the petitioner can file a proper civil appeal before the O.P (Crl) No.279 of 2014 4 proper court, subject to the law of limitation. If not filed in time, he will have to file application to condone the delay, and such application will be considered on merits by the appellate court, and appropriate decision will be taken.
In the result, this Original Petition is dismissed in limine without being admitted to files, however, without prejudice to the right of the petitioner to file proper Civil Miscellaneous Appeal before the proper court, as indicated above.
P.UBAID JUDGE ab