WP 622/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 622/2016
Sahebrao s/o Tejrao Sawale,
Aged about 66 years, Occ. Pensioner,
R/o Buldana, Tah. and District Buldana. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
Through Assistant Public Prosecutor, Buldana,
Tah. and District - Buldana.
2. Digambar S/o Narayan Mahale,
aged about 64 years, Occ. Pensioner.
3. Suresh S/o Ganeshrao Patil,
Aged about 60 years, Occ. Pensioner.
Both R/o Buldana, Tah. and District-Buldana.
4. Shyamsundar S/o Gangadhar Patankar,
aged about 65 years, Occ. Pensioner,
R/o Suvarna Nagar, Buldana,
Tah. and District-Buldana.
5. Mrs. Nirmala W/o Digambar Mahale,
aged about 60 years, Occ. Household.
6. Chandrashekhar S/o Digambar Mahale,
aged about 40 years, Occ. Service.
Both 5 and 6 R/o Buldana, Tah. and District-Buldana.
7. Dr.Ganesh S/o Digambar Mahale,
aged about 37 years, Occ. Medical Practitioner,
R/o Khamgaon, Tah. Khamgaon, District-Buldana.
8. Smt.Bharti W/o Suresh Patil,
Aged about 56 years, Occ. Household,
R/o Buldana, Tah. and District-Buldana. RESPONDE
NTS
Mr. R.D. Dharmadhikari, counsel for the petitioner.
Mr. A.R. Chutke, Additional Public Prosecutor for the respondent no.1.
Mr. R.P. Joshi, counsel for the respondent nos.2 to 8.
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WP 622/16 2 Judgment
CORAM : REVATI MOHITE DERE, J.
DATE : 05 TH DECEMBER, 2017.
ORAL JUDGMENT
Heard learned counsel for the parties. Rule is made
returnable forthwith with the consent of the learned counsel for the parties and the petition is taken up for final disposal.
2. By this petition, the petitioner (original complainant) has impugned the judgment and order dated 16.05.2016 passed by the learned Sessions Judge, Buldana in Criminal Revision No.16/2014, by which the learned Sessions Judge was pleased to quash and set aside the impugned order issuing process, dated 13.01.2014 and consequently dismissed the complaint.
3. Learned counsel for the petitioner submitted that the learned Sessions Judge had erred in dismissing the complaint while setting aside the order issuing process, inasmuch as, the learned Judge had not gone into the merits of the complaint but, had only quashed the order issuing process on the ground, that the procedure adopted by the learned Magistrate while issuing process was erroneous. He submitted that the petitioner cannot be faulted, if the procedure adopted by the learned ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:24:11 ::: WP 622/16 3 Judgment Magistrate whilst issuing process was erroneous, and therefore, the dismissal of the complaint by the learned Sessions Judge as a consequence thereto, was unwarranted. He prays that the impugned order, in so much as it dismisses the complaint be quashed and set aside and the learned Magistrate be directed to decide the complaint afresh, in accordance with law.
4. Learned counsel for the respondent nos.2 to 8 opposed the petition. He submitted that no interference was warranted in the impugned order dated 16.05.2016.
5. Perused the papers including the impugned order dated 16.05.2016. The petitioner (original complainant) had filed Criminal Complaint Case No.71/2005 in the Court of learned Judicial Magistrate First Class, Buldana as against the respondent nos.2 to 8 herein, for the alleged offences punishable under Section 420, 406, 468, 471 read with Section 34 of I.P.C. It appears that the learned Magistrate was pleased to pass an order under Section 156(3) of Cr.P.C., after recording the verification of the complainant. It appears that thereafter, the learned Magistrate recorded the statements of two witnesses and issued process vide order dated 13.01.2014. The said order dated 13.01.2014 of issue process was challenged by ::: Uploaded on - 08/12/2017 ::: Downloaded on - 10/12/2017 01:24:11 ::: WP 622/16 4 Judgment the respondent nos.2 to 8 by filing Criminal Revision Application before the learned Sessions Judge, Buldana. The learned Sessions Judge observed that the procedure adopted by the learned Magistrate was erroneous and as such quashed and set aside the order issuing process dated 13.01.2014. While quashing the order issuing process, the learned Sessions Judge also dismissed the criminal complaint, despite observing in paragraph 51 as under:-
"51. As I have decided not to go into factual aspect of the case, the rest of the citations relied on by learned counsel for petitioners are not touched as they relate to nature of proceedings i.e. whether criminal action can be maintained if the matter is of civil nature."
6. As, admittedly, the factual aspects of the matter were not gone into by the learned Sessions Judge, the learned Sessions Judge could not have dismissed the complaint. Considering the aforesaid, the impugned order is required to be maintained insofar as it quashes and sets aside the order issuing process dated 13.01.2014. However, the order dismissing the complaint being unwarranted in the facts, is required to be quashed and set aside.
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WP 622/16 5 Judgment 7. Accordingly, the petition is partly allowed. The impugned
order is maintained insofar as it quashes and sets aside the order issuing process dated 13.01.2014. However, the order dismissing the complaint is quashed and set aside. Criminal Complaint Case No.71/2005 is restored back to its original file. Learned Magistrate shall consider the criminal complaint afresh, on its own merits, in accordance with law. Since the complaint is of 2005, the hearing is expedited. Rule is made absolute in the aforesaid terms.
8. All parties to act on the authenticated copy of this judgment.
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