Bombay High Court
Dr. Rajendra vs The State Of Maharashtra on 19 October, 2012
Bench: Shrihari P. Davare
(1) Cri. Application No. 3732 / 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Application No. 3732 of 2012
Dr. Rajendra s/o. Narayanrao Dhakne,
Age : Major,
Occupation : Medical Practitioner,
R/o. Dhakne Hospital, Subhash Road,
Beed, Taluka & District : Beed. .. Applicant.
versus
The State of Maharashtra. .. Respondent.
.......................
Mr. Rajendra G. Hange, Advocate, for the applicant.
Mr. B.J. Sonwane, Additional Public Prosecutor, for
the respondent.
........................
CORAM : SHRIHARI P. DAVARE, J.
DATE : 19TH OCTOBER 2012
ORAL JUDGMENT :
1. Heard Adv. Mr. R.G. Hange for the applicant, and learned
APP Mr. B.J. Sonwane for the respondent.
(2) Cri. Application No. 3732 / 2012
2. At the request of learned Counsel for the applicant, leave
granted to delete the provision of Section 397 of the Code of Criminal
Procedure, 1973, from the present Application.
3. Rule. Rule made returnable forthwith. With the consent of
learned Counsel for the parties, taken up for final hearing.
4. This is an application preferred by the applicant (original
accused) under Section 482 of the Code of Criminal Procedure, praying
that the order 17-7-2012, passed by the learned Sessions Judge, Beed, in
Criminal Revision Application No. 21/2012, be quashed and set aside, and
the applicant be allowed to withdraw the said Criminal Revision
Application No. 21/2012, pending before the said court.
5. The respondent herein, through Dr. Gauri Raghunath Rathod,
Civil Surgeon, District Hospital, Beed, i.e. original complainant, had filed
criminal case being R.C.C. No. 898/2011 against the present applicant
alleging commission of the offence under Sections 5(2), 23 and 25 of
Prohibition of Sex Selection Act, before Chief Judicial Magistrate, Beed,
on 29-12-2011. It is the contention of the applicant herein, that the learned
Chief Judicial Magistrate, Beed, issued process against the applicant on
21-12-2011, without recording verification statement. Hence, being
aggrieved, applicant herein preferred Criminal Revision Application No.
21/2012 before the Court of Sessions, Beed, challenging the said order
passed by the learned Chief Judicial Magistrate, in respect of issuance of
process against the applicant herein. Accordingly, the said Criminal
(3) Cri. Application No. 3732 / 2012
Revision Application was admitted on 7-3-2012, by the learned Sessions
Judge, and notice was issued to the respondent therein, and copy of the
said Criminal Revision Application is annexed herewith at Exhibit "A".
Thereafter, since R.C.C. No. 898/2011 was fixed for recording of evidence
before learned Chief Judicial Magistrate, Beed, the applicant herein
preferred a Pursish Exhibit 8/C before learned Sessions Judge, Beed, in
Criminal Revision Application No. 21/2012 on 17-7-2012, with a request
to dispose of the said Criminal Revision Application since the applicant
did not desire to prosecute the same. Learned Sessions Judge, Beed,
passed an order on the said Pursish that, "Seen and filed. Read order
below Exhibit 1", and passed the order below Exhibit 1 on the same day
i.e. 17-7-2012, as follows :
" Read withdrawal Pursish Exhibit 8.
It is well settled that Criminal Revision has to
be decided by Sessions Court on merits. Hence,
matter be posted for final hearing."
Copy of the said Pursish and order thereon is annexed herewith at Exhibit
"B". Hence, the applicant has approached this Court by filing the present
Application for the prayers as set out herein above.
6. Adv. Mr. R.G. Hange for the applicant canvassed that since
R.C.C. No. 898/2011 was fixed before learned Chief Judicial Magistrate,
Beed, for recording of evidence, the applicant herein i.e. revision
petitioner in Criminal Revision Application No. 21/2012 before learned
Sessions Judge, Beed, did not desire to prosecute the said Criminal
(4) Cri. Application No. 3732 / 2012
Revision Application before learned Sessions Judge, Beed, and hence, he
filed the Pursish Exhibit 8/C on 17-7-2012 stating the said reason and
urged that the said Criminal Revision Application be disposed of.
According to the applicant, when R.C.C. No. 898/2011 was fixed for
recording of evidence before learned Chief Judicial Magistrate, there was
no propriety to prosecute the said Criminal Revision Application since
order of issuance of process passed by the learned Chief Judicial
Magistrate, Beed, was under challenge therein. Hence, learned Counsel
for the applicant submitted that as per Pursish filed by the applicant below
Exhibit 8/C on 17-7-2012, learned Sessions Judge, Beed, should have
disposed of the said Criminal Revision Application considering the
contents therein, but the learned Sessions Judge, Beed, observed that the
said Criminal Revision Application is required to be decided on its own
merits, and fixed the same for final hearing which, in fact, was
unwarranted.
7. Learned Counsel for the applicant submitted that there may be
two eventualities in the Criminal Revision Application filed before learned
Sessions Judge, (i) it would be argued and decided on merits, or (ii)
applicant may withdraw the said Criminal Revision Application and it
could be dismissed as withdrawn, if he has no chances of success therein
since the applicant of the said Criminal Revision Application is master of
the own proceeding, but the said dismissal by withdrawal would be after
entertaining it. To substantiate the said contention, he has relied upon the
judicial pronouncement of Rajasthan High Court, in the case of Shri
Swetamber Jain Sampraday Vs. Digamber Amnay and others, reported at 1982
Cri.L.J. 701, wherein it is observed thus :
(5) Cri. Application No. 3732 / 2012
" ............. There may be case where in the Court
of Session, a revision petition may be argued on
merits but feeling that there are no chances of success,
a party may withdraw the application and it will be
dismissed as withdrawn. Nonetheless it will be a
dismissal after the revision petition is entertained. "
8. Learned APP Mr. B.J. Sonwane for the respondent supported
the present petition and submitted that the Criminal Revision Application
filed before the Sessions Court cannot be dismissed in the absence of the
applicant, but it can be dismissed as withdrawn on the request of the
applicant therein, since the applicant is master of his own proceeding.
Even as regards the merits, learned APP submitted that the challenge to the
issuance of process in the said Criminal Revision Application before
learned Sessions Court is not tenable in the light of proviso of Section 200
of the Code of Criminal Procedure. Hence, he submitted that in any event,
said Criminal Revision Application deserves to be dismissed.
Accordingly, he submitted that the impugned order is required to be
quashed and set aside, and Criminal Revision Application No. 21/2012
pending before learned Sessions Judge, Beed, is required to be dismissed
as withdrawn, as per the Pursish Exhibit 8/C, dated 17-7-2012, filed by the
applicant herein.
9. I have perused the present Application, its annexures, copy of
the Criminal Revision Application No. 21/2012 pending before learned
Sessions Judge, Beed, and orders passed thereon, more particularly,
impugned order passed below Exhibit 1 on 17-7-2012, and the Pursish
Exhibit 8/C dated 17-7-2012 filed by the applicant in the proceedings of
(6) Cri. Application No. 3732 / 2012
Criminal Revision Application No. 21/2012, and heard the submissions
advanced by the learned Counsel for the parties, and also considered
judicial pronouncement cited by the learned Counsel for the applicant.
10. At the outset, undisputedly, the applicant herein preferred
Criminal Revision Application No. 21/2012 before learned Sessions Judge,
Beed, challenging the order of issuance of process by the learned Chief
Judicial Magistrate, Beed, on the complaint filed by the respondent herein
under R.C.C. No. 898/2011. It appears that thereafter said R.C.C. No.
898/2011 was fixed for recording of evidence before learned Chief
Judicial Magistrate, Beed. Hence, the applicant herein filed Pursish below
Exhibit 8/C in Criminal Revision Application No. 21/2012 on 17-7-2012,
categorically stating therein that the proceeding before the lower court was
fixed for recording of evidence, and hence, the applicant herein was not
desirous to proceed with the said Criminal Revision Application
furthermore, and hence, submitted that the said Criminal Revision
Application be disposed of. It is the matter of record that the said
Criminal Revision Application was admitted by the learned Sessions Court
on 7-3-2012, and thereafter Pursish Exhibit 8/C was preferred by the
applicant on 17-7-2012. However, as stated in the said Pursish Exhibit
8/C, and as averred by the applicant herein, since R.C.C. No. 898/2011
was fixed for recording of evidence before learned Chief Judicial
Magistrate, Beed, there was no propriety in prosecuting the said Criminal
Revision Application before learned Sessions Judge, Beed, furthermore,
and hence, the applicant herein filed the Pursish before the said court
urging that the said Criminal Revision Application be disposed of.
(7) Cri. Application No. 3732 / 2012
11. There is no dispute that the Criminal Revision Application
filed before the Sessions Court and admitted by the said court cannot be
dismissed in the absence of the applicant. However, considering the
peculiar facts in the present case, since R.C.C. No. 898/2011 was fixed
before learned Chief Judicial Magistrate for recording of evidence, there
was no necessity and propriety to proceed furthermore with the Criminal
Revision Application No. 21/2012 before learned Sessions Judge, Beed,
wherein the order of issuance of process passed by the learned Chief
Judicial Magistrate, Beed, was under challenge, and hence, learned
Sessions Judge, Beed, should have disposed of the said Criminal Revision
Application as per Pursish dated 17-7-2012 filed at Exhibit 8/C by the
applicant herein. Moreover, it cannot be ignored that the applicant is the
master of his own proceeding in the said Criminal Revision Application,
and as canvassed by the learned Counsel for the applicant, after filing the
Criminal Revision Application before learned Sessions Court, there are
two eventualities : (i) such revision application after admission shall have
to be decided on its own merits, or (ii) the revision application can be
dismissed as withdrawn at the instance of the applicant therein if the
applicant feels that there are no chances of success, and no doubt, it will be
dismissal after revision application is entertained, and the said view is
fortified by the judicial pronouncement cited by the learned Counsel for
the applicant in the case of Shri Swetamber Jain Sampraday Vs. Digamber
Amnay and others (supra).
12. Besides, as per the very text of Section 397 of the Code of
Criminal Procedure, 1973, the High Court or any Sessions Court may call
for and examine the record of any proceedings before any inferior
(8) Cri. Application No. 3732 / 2012
Criminal Court situated within its local jurisdiction for the purpose of
satisfying itself as to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and apparently, there is no express bar
for withdrawal of such Criminal Revision Application by the applicant, if
required, under Section 397 of Code of Criminal Procedure, and since
R.C.C. No. 898/2011 was fixed before learned Chief Judicial Magistrate
for recording of evidence, there was no necessity to ascertain the legality /
correctness of order of issuance of process, and therefore, there was no
propriety to continue with the said Criminal Revision Application on
merits and same would have been disposed of as per the said withdrawal
Pursish. Besides, whatever contemplated under Section 397(3) is that the
revision petition before the Sessions Court and also before the High Court
by the same person cannot be entertained, and in the event, the applicant
having preferred revision petition before the Court of Sessions, he is
debarred from making any revision petition before the High Court under
Sub-Section 3 of Section 397 of the Code of Criminal Procedure.
13. Moreover, language used in the case of Rajindar Prasad Vs.
Bashir and others, reported at 2002(1) Bom. Cr.C. 659 (SC) = AIR 2001 SC
3524, is that when the earlier revision petition filed under Section 397 of
the Code of Criminal Procedure has been dismissed as not pressed, the
accused could not be allowed to invoke the inherent powers of the High
Court under Section 482 of the Code for grant of the same relief. Hence,
even the very text of the said judicial pronouncement impliedly makes it
clear that the Criminal Revision Application under Section 397 of the
Code of Criminal Procedure before the Court of Sessions can be dismissed
(9) Cri. Application No. 3732 / 2012
as not pressed.
14. Apart from that, sight cannot be lost of the aspect that even on
merits also, the Criminal Revision Application preferred by the applicant
before the learned Sessions Judge, Beed, challenging the order of issuance
of process by the learned Chief Judicial Magistrate, Beed, would not be
tenable in view of very proviso to Section 200 of the Code of Criminal
Procedure.
15. In the circumstances, present Application deserves to be
allowed, and the impugned order dated 17-7-2012, passed by the learned
Sessions Judge, Beed, below Exhibit 1, deserves to be quashed and set
aside, and the Criminal Revision Application No. 21/2012, pending before
learned Sessions Judge, Beed, is required to be permitted to be dismissed
as withdrawn, to prevent abuse of process of court.
16. In the result, present Criminal Application is allowed in terms
of prayer clauses "A" and "B" thereof, and the impugned order dated
17-7-2012, passed by the learned Sessions Judge, Beed, in Criminal
Revision Application No. 21/2012, stands quashed and set aside, and the
applicant is allowed to withdraw the Criminal Revision Application No.
21/2012, pending before the same Court, as per Pursish Exhibit 8/C, and
present Application is disposed of accordingly.
17. Rule is made absolute in the aforesaid terms.
(10) Cri. Application No. 3732 / 2012
18. Certified Copy expedited.
(SHRIHARI P. DAVARE)
JUDGE
.........................
bgp/cria3732
