Bombay High Court
Mayur Ashok Jaiswal vs Suryabhan Fakirchand Rithe And ... on 20 July, 2016
Bench: A.I.S. Cheema
Criminal W.P.No.709/2014
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.709 OF 2014
Mayur Ashok Jaiswal
Age 32 years, Occu. Business,
R/o Jubilee Park, Aurangabad,
District Aurangabad ... PETITIONER
(Orig. Complainant)
VERSUS
1.
Suryabhan s/o Fakirchand Rithe,
Age 48 years, Occu. Agriculture,
R/o Dhangar Galli, Chikalthana,
Aurangabad, District Aurangabad
2. Tarabai w/o Suryabhan Rithe,
Age 35 years, Occu. Household,
R/o Dhangar Galli, Chikalthana,
Aurangabad, District Aurangabad ... RESPONDENTS
(Orig. Accused)
.....
Shri H.A. Joshi, Advocate for petitioner
Ms Shubhangi D. More, Advocate for respondents
.....
CORAM: A.I.S. CHEEMA, J.
DATED: 20th July, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard
finally with the consent of learned counsel for the parties.
2. It is stated that the criminal trial was pending in the
trial Court bearing S.C.C. No.1096/2013, in which summons were
Criminal W.P.No.709/2014
issued, but the trial Court, on 11.4.2014, suddenly closed the
proceedings observing that, in spite of issuing summons on
various occasions, the same had not been served. The trial was
under Sections 447, 504, 506 read with Section 34 of the Indian
Penal Code. According to the petitioner (original complainant),
the trial Court thus discharged the accused, proceeding under
Section 258 of the Code of Criminal Procedure, 1973 (Cr.P.C. for
short). It is stated that, it was duty of the trial Court to secure
presence of the accused, and the trial Court should have verified
as to what happened to the summons issued and if required
warrants should have been issued.
3. The learned counsel for the respondents - original
accused submits that, the order passed by the trial Court is
correct and proper. She further refers to the judgment in the
matter of Marotrao Ganpatrao Jadhav Vs. The State & anr.
reported in 1960 BCI 66 to submit that, the petitioner (original
complainant) should have filed revision against impugned order
and this Writ Petition may not be entertained.
4. I have gone through the Exhibit A, the final report, on
which the trial Court has passed orders. The order reads as
under :
Criminal W.P.No.709/2014
"In the present proceeding, the summons was issued
against the accused on several occasions since filing of
charge sheet. However, the service of same has not
been made yet. Hence, the present proceeding is hereby
stopped under Section 258 of the Code of Criminal
Procedure. In the result, the accused shall stand
discharged of the offences, as alleged and the present
proceeding shall stand disposed of. The muddemal be
destroyed after expiry of appeal period."
5. The copy of roznama is also available. It appears
from the roznama that, on multiple dates it was mentioned that
summons be issued to the accused. At some place, it is
mentioned that the summons has been issued. The roznama
does not show any endorsement of "Kamgiri", which is made by
the staff of the trial Courts in the margin. Whenever in
consequence to the directions recorded in the roznama actually
summons is issued, the staff enters the fact in the margin. No
such endorsement appears in the copy of roznama as available in
this matter. For a moment even if it is accepted that actually
summons were issued and the entry in the roznama was not
made, still there is no material available from the roznama to
show that the trial Court at any time checked from the Police
Station attached to it as to why the summons issued has not
come back or what has happened to the summons which were
issued and why service was not successful. There is no material
to show that the trial Court gave any directions to the A.P.P. to
Criminal W.P.No.709/2014
take the summons and ensure service or take bailable warrants
in the matter. The roznama simply shows multiple endorsements
of either- summons be issued, or that, summons has been
issued, and on one fine day suddenly order is passed below
Exh.1, and resorting to Section 258 of the Cr.P.C. and the
proceeding is stopped.
6. If the record was to show that the trial Court made
the necessary efforts and the police machinery or the State are
not co-operating, it would be a different case. But here there is
no material to show that actually summons were issued and the
State did not co-operate.
7. No doubt against the order concerned revision can be
maintained. However, it does not mean that the present Writ
Petition is not maintainable. It is surprising to see how the
respondents - accused, who were not available in the trial Court,
suddenly got served in the Writ Petition and are now available to
oppose the Writ Petition.
8. In the interest of justice, I find that the impugned
order as has been passed by the trial Court needs to be quashed
and set aside as it is not maintainable.
Criminal W.P.No.709/2014
9. For above reasons, the Criminal Writ Petition is
allowed. The impugned order dated 11.4.2014 is quashed and
set aside. The Summary Criminal Case No.1096/2013 is restored
to the file of 3rd Judicial Magistrate, First Class, Aurangabad.
The parties shall appear before the trial Court on 5th August
2016. In case the present respondents - original accused do not
appear before the trial Court, the trial Court may take coercive
steps to secure their presence.
10. Rule made absolute in above terms.
(A.I.S. CHEEMA, J.)
fmp/cwp709.14
