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2013 DIGILAW 1821 (BOM)

Namdeo v. Phulabai

2013-09-05

ABHAY M.THIPSAY

body2013
JUDGMENT 1. ' Rule ' as against the respondent No. 2. 2. It is not necessary to hear the respondent No. 1. 3. By consent, Rule issued to the respondent No. 2 is made returnable forthwith. By consent, heard finally forthwith. 4. The respondent No. 1 had filed a complaint against the petitioner and two (2) others, alleging commission of various offences by them. 5. The learned Judicial Magistrate First Class, Aashti, after examining the respondent No. 1 on oath, issued process in respect of the offence punishable U/ss 323, 342, 504 of the Indian Penal Code [ For short, I.P.C.'] read with Section 34 of I.P.C. against all the accused, including the present petitioner. 6. Aggrieved by the order issuing process against him, the petitioner approached the Court of Sessions by making an application for revision. The learned Additional Sessions Judge heard the revision and disposed of the same by the following order:- "Criminal Revision is partly allowed as under: Revision petitioner is at liberty to move learned Judicial Magistrate First Class, Ashti for passing appropriate order after hearing revision petitioner against the order of issue process passed by the Judicial Magistrate First Class against him. Inform the learned Judicial Magistrate First Class accordingly. " 7. It is this order that has been challenged by the petitioner by filing the present Writ Petition under Articles 226 and 227 of the Constitution of India. 8. The order passed by the learned Additional Sessions Judge is patently illegal. The learned counsel for the petitioner has drawn my attention to the points of determination as framed by the learned Additional Sessions Judge and the findings thereon recorded by him. It appears that the Additional Sessions Judge, though was of the view that the issuance of process by the Magistrate was erroneous, was of the further view that the petitioner should have approached the Magistrate himself, for the redressal of his grievance. In para No. 9 of the order, the learned Additional Sessions Judge has observed as follows, "Revision petitioner has challenged this order in Criminal revision without knocking the door of learned Judicial Magistrate First Class, by putting aforementioned evidence before him, therefore, in my opinion, it would be proper for revision petitioner to knock the door of learned Judicial Magistrate First Class and obtain appropriate order. In view of above discussion, I am of the opinion that matter is required to send back to the trial Court of Judicial Magistrate First Class, Ashti for deciding afresh on the point of issue of process under Sections 323, 342, 504 read with Sec. 34 of the I.P.C. as against present revision petitioner. " 9. The order passed by the learned Additional Sessions Judge is contrary to law. It is well settled that the learned Magistrate, having issued process, would have no power to review or reconsider the question of issue of process. The legal position has been made clear by the pronouncement of the Supreme Court in the case of AdalatPrasad V/s Rooplal Jindal and others reported in 2004 (4) Mh.L.J. 274 . 10. The learned Additional Sessions Judge seems to be unaware of this legal position and was apparently of the view that the Magistrate could have cancelled his own order issuing process. As the order passed by the Additional Sessions Judge is patently illegal, the same needs to be interfered with. 11. The order dated 07/09/2010 passed by the learned Additional Sessions Judge is set aside. The Revision Application be restored to the file of the learned Additional Sessions Judge, who shall, after giving an opportunity to the parties of being heard, decide the same afresh on merits and in accordance with law. 12. It is expressly made clear that no opinion has been expressed by this Court as to whether the order issuing process suffers from any illegality or impropriety or is liable to be interfered with. It would be for the learned Additional Sessions Judge to consider the same in accordance with law. 13. The learned Additional Sessions Judge shall dispose of the revision application within a period of three (3) months from the date of receipt of this order. 14. The Writ Petition is allowed in the aforesaid terms. Rule is made absolute accordingly.