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2013 DIGILAW 1972 (BOM)

Subhash s/o. Kanhayalalji Zanjri v. Shamsher Khan Yakub Khan

2013-09-24

P.D.KODE

body2013
JUDGMENT Heard Mrs. Anjali Joshi, learned Counsel for the Petitioner and Shri D.R. Bhoyar, learned Counsel for the Respondent. 2. Rule. Rule is made returnable forthwith with the consent of the parties and the matter is taken up for final hearing. 3. By this petition filed under Article 227 of the Constitution of India, read with Section 482 of the Criminal Procedure Code, the petitioner - accused has assailed an order of issuing process against him by the trial Court, as well as the order passed by the Court of Sessions, dismissing an application in revision preferred by him challenging the order of issuance of process. 4. Considering the short controversy involved in the matter it will wholly be unnecessary to recite any other facet, other than the applicant is facing the proceeding before the Trial Court, in view of the complaint made by the respondent of the applicant having committed an offence punishable under Section 420 of Indian Penal Code read with Section 2 and 11 of the Bombay Money Lenders Act. Upon the said complaint, the trial Court was pleased to issue a process against the applicant only for offence under Section 420 of the Indian Penal Code. The applicant being aggrieved by the said order of issuance of such process, preferred an application in revision amongst others, contending that the complaint made, fail to disclose any act committed by the applicant constituting an offence for which the process was issued. 5. The learned Sessions Judge by an order dated 11.01.2013, amongst other reasons, recording that an order issuing process, is an interlocutory order, was pleased to dismiss the said application in revision. 6. Mrs. Anjali Joshi, learned Counsel for the applicant by laying fingers upon a decision in the case of Rajendra Kumar Sitaram Pande and others vrs. Uttam and another reported at AIR 1999 SC 1028 : [1999 (3) ALL MR 232 (S.C.)] : [1999 ALL MR (Cri) 871 (S.C.)], has rightly submitted that an order directing issuance of process is not purely an interlocutory order and bar under Section 397 (2), therefore, preferring such a revision is not applicable. Such a conclusion is in-debatable in view of the discussion made by the Hon'ble Supreme Court in the aforesaid decision in paragraph nos. 4, 5 and 6. 7. Such a conclusion is in-debatable in view of the discussion made by the Hon'ble Supreme Court in the aforesaid decision in paragraph nos. 4, 5 and 6. 7. Shri D.R. Bhoyar, learned Counsel appearing for the respondent has fairly submitted that such being a legal position regarding the relevant aspect as pronounced by the Hon'ble Supreme Court by the said decision. 8. As a result of thereof, the order passed by the Court of Sessions dismissing the application in revision cannot be legally sustained. Resultantly the same is quashed and set aside. The revision application No. 92/2012 stands restored to the file of Court of Sessions. Consequently, the matter is relegated back to the Court Session with a direction to dispose of the said application/revision as expeditiously as possible and in accordance with law. 9. Needless to mention that though the applicant has also assailed the order passed by the Trial Court, his application in revision being decided on the preliminary point, without considering the merits of the matter, there appears no propriety in considering other aspect by this Court without there being a decision upon the relevant aspect by the Court of Sessions. 10. In view of above discussion, Rule is made absolute in the aforesaid terms, with no order as to costs. Ordered accordingly.