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2006 DIGILAW 815 (GUJ)

R. B. SREEKUMAR, D. S. P. KUTCHH BHUJ v. STATE OF GUJARAT

2006-12-12

RAVI R.TRIPATHI

body2006
( 1 ) THESE three Criminal Revision Applications are filed against the order of issuing process for offences under sections 323, 324, 341, 342, 504, 506 (2) read with sec. 141 of the Indian Penal Code in the following Criminal Cases: Criminal Revision Application No. 418 of 2002 2189 of 1990 Learned Judicial Magistrate, Criminal Case No. Filed before First Class, Bhuj. 419 of 2002 2190 of 1990 - do - 420 of 2002 2191 of 1990 - do - The matter was heard at length. It was pointed out that earlier the original complainant in these criminal cases had approached this Court by way of - Complainant in the had earlier filed present Criminal Revision Application No. 418 of 2002 359 of 1990 419 of 2002 358 of 1990 420 of 2002 360 of 1990 Criminal Revision No. ( 2 ) THE same are heard and decided by this Court [coram: B. C. Patel, J. (as he then was)] by order dated 24. 12. 1990. The relevant part of the order reads as under: "in view of this, the order passed by the learned Magistrate is required to be modified. It is directed that the learned Magistrate shall issue process against original accused no. 1. " ( 3 ) THE matters were remitted to the learned Judicial Magistrate, First Class. After hearing all the parties the learned Magistrate passed order rejecting the application filed by accused vide Exh. 171 (in Criminal Revision Application No. 418 of 2002 ). Relevant part of the order under challenge-Para 16 contains the following observations: ". . . . In view of the order passed by the Hon ble High Court of Gujarat in Criminal Revision Application No. 356/90 (sic. , 359/90), the order of issuing process was passed. . . . . " ( 4 ) MR. SHETHNA, learned Senior Advocate strenuously tried to convince this Court that the order under challenge is required to be quashed and set aside as the learned JMFC has not taken into consideration provisions of sec. 197. , 359/90), the order of issuing process was passed. . . . . " ( 4 ) MR. SHETHNA, learned Senior Advocate strenuously tried to convince this Court that the order under challenge is required to be quashed and set aside as the learned JMFC has not taken into consideration provisions of sec. 197. ( 5 ) HE relied upon number of decisions of the Hon ble the Apex Court and submitted that before issuing process the court has to take into consideration the nature of the act alleged in the complaint and only in the event of his coming to a definite conclusion that the act alleged cannot be said to be a part of discharge of his duties, order issuing process can be passed. ( 6 ) ENTERTAINING a revision application against the order of issuing process , which is issued under the mandate of this Court will amount to sitting in appeal over the order of the Coordinate Bench of this Court and hence the Criminal Revision Applications are not entertained only on this short ground. The Court has not examined the merits of the case. It will be open for the appellants to take recourse to the remedy available under law. ( 7 ) IN light of these facts the Court restrains itself from entering into the merits of the submissions made by Mr. Shethna, it can be reiterated that only on the ground that the order passed by the learned JMFC of issuing process is under direct mandate issued by this Court in the earlier revision application, i. e. Criminal Revision Application No. 359 of 1990 (in this particular case) and similarly in Criminal Revision Applications No. 358 of 1990 and 360 of 1990 (in other two cases), it is held that these Revision Applications are not maintainable for the reliefs sought for. ( 8 ) MR. SHETHNA, learned senior advocate submitted that exh. 171 was filed on 21. 09. 1996, wherein it was submitted that the applicants (in exh. 171) being Police officers are entitled to protection available under sec. 197 of the Code of Criminal Procedure, that they are protected Police Officers under the Bombay Police Act, the complaint deserves to be quashed. The learned advocate Mr. Shethna submitted that the learned JMFC did not take into consideration this aspect of the matter and passed the order under challenge. 197 of the Code of Criminal Procedure, that they are protected Police Officers under the Bombay Police Act, the complaint deserves to be quashed. The learned advocate Mr. Shethna submitted that the learned JMFC did not take into consideration this aspect of the matter and passed the order under challenge. ( 9 ) IN the considered opinion of this Court the learned JMFC under the mandate of this Court, could not have taken into consideration this aspect. It is clarified that this aspect is not examined by this Court also, because as is mentioned in para 16 of the order of the learned JMFC, he has issued order carrying out the mandate of this Court. Therefore, it will be appropriate that the petitioners take recourse to the remedy available to them under the law. The Criminal Revision Applications are disposed of accordingly. Rule is discharged. ( 10 ) AT this juncture, learned senior advocate Mr. Shethna requested that protection which is continued all along be continued for some time to enable the petitioners to take recourse to the remedy available. In the facts and circumstances of the case it is deemed fit that the ad interim relief as is granted by this Court on 29. 10. 2002, operating till date shall continue till 28th February 2007.