Sahebrao S/O Tejrao Sawale vs State Of Maharashtra, Thr. ...
2017 Latest Caselaw 9300 Bom

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

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

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.

 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.

JUDGE APTE