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2007 DIGILAW 1141 (BOM)

Nilesh Mansukhlal Jain v. State of Maharashtra

2007-08-17

C.L.PANGARKAR

body2007
ORAL JUDGMENT: Rule. Returnable forthwith. 2. Heard finally with the consent of parties. 3. This is an application under Section 482 of the Criminal Procedure Code. 4. It is alleged that the present applicant/accused is running a Pathology Laboratory. A complaint was received by the police that present applicant/accused runs a Pathology Laboratory without there being proper qualifications with him. The police had, therefore, sent a punter to his laboratory with a sum of Rs.100/-. Blood was given by the punter. It was examined. Report was also given by the present applicant/accused and he passed a receipt. 5. Police, therefore, registered an offence under Section 417, 419 and 420 of Indian Penal Code and Section 33 and 36 of the Maharashtra Medical Practitioners Act. 6. The accused applied for discharge by filing an application Ex. 14. The said application was rejected by the Judicial Magistrate First Class. A revision was, therefore, preferred before the Court of Sessions. Court of Sessions after going through certain documents that were placed before the Sessions Court thought it fit to remand the matter back to the Judicial Magistrate First Class with a direction that he should consider application Ex.14 afresh and also consider the documents while framing the charge or discharging the accused. After the remand the learned Magistrate framed charges under Section 417, 419 and 420 Indian Penal Code. Accused/applicant therefore felt aggrieved by framing of that charge also under the above Sections of Indian Penal Code and he preferred Criminal Revision No. 782 of 2006 before the Court of Sessions. Court of Sessions dismissed the revision but gave a direction that the Magistrate should frame charge according to the observations made by him in the judgment. Learned Sessions Judge thereby wanted that the Magistrate should frame charge also under Sections 33 and 36 of the Maharashtra Medical Practitioners Act. It is this order which is challenged here. 7. I have heard Shri Kshirsagar learned counsel for the applicant/accused and Shri Doifode learned APP for the State. 8. The order of the learned Sessions Judge can be set aside on a single ground. The learned Sessions Judge has dismissed the revision. The State had not preferred any revision before the Sessions Judge and, therefore, the Sessions Judge had no jurisdiction to direct the Magistrate to frame the additional charge against the accused. 8. The order of the learned Sessions Judge can be set aside on a single ground. The learned Sessions Judge has dismissed the revision. The State had not preferred any revision before the Sessions Judge and, therefore, the Sessions Judge had no jurisdiction to direct the Magistrate to frame the additional charge against the accused. Accused is deemed to have been discharged of the offence for which no charge has been framed by the Magistrate. Accused was therefore deemed to be discharged. As far as offences under Sections 33 and 36 are concerned the State had not preferred any revision against that order and, therefore, Sessions Judge did not have jurisdiction to direct the Magistrate to frame the charge under Section 33 and 36 of the Maharashtra Medical Practitioners Act. In view of this the order as passed by the learned Sessions Judge on 27.11.06 directing framing of charges under Section 33 and 36 of Maharashtra Medical Practitioners Act is set aside. Magistrate shall now proceed to decide the case against the accused so far as offences under Section 417, 419 and 420 are concerned. With this, the application under Section 482 Criminal Procedure Code is accordingly disposed of.