Bombay High Court

Pune Muncipal Corporation And Ors vs Ramesh Radhakrishna Phondage And ... on 15 February, 2021

Bench: A.S. Gadkari

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CRIMINAL APPELLATE JURISDICTION

              CRIMINAL WRIT PETITION NO. 443 OF 2005

1   Pune Municipal Corporation,
    (General Body), Shivajinagar
    Pune - 411 005.
2   Shri. Dilip Baburao Tupe,
    Adult, Occupation : Social
    Worker & Member of Standing
    Committee of Pune Municipal
    Corporation, Residing at:
    208, Malwadi, Hadapsar,
    Pune-411 028.
3   Shri. Mukari Shetty Algude,
    Adult, Occupation: Social
    Worker & Member of Standing
    Committee, Pune Municipal
    Corporation, Residing at
    336, Old Wadarwadi,
    Pune - 411 016.
4   Shri. Suresh Vitthalrao Kadam,
    Adult, Occupation: Social
    Worker & Member of Standing
    Committee, Pune Municipal
    Corporation, Residing at
    Katraj Gaon, Opp. Ganpati
    Mandir, Pune - 411 046.
5   Padmaja Prakash Gole,

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    Adult, Occupation: Social
    Worker & Member of Standing
    Committee, Pune Municipal
    Corporation, Residing at
    Shree Tej, Flat No.3,
    Maharashtra Housing Board
    Colony, Pune - 411 016.
6   Shri. Sopan alias Kakasaheb
    Bandoji Chavan, Adult,
    Occupation: Social Worker
    & Member of Standing
    Committee, Pune Municipal
    Corporation, Residing at
    S. No.64, Venkateshwara Apartments,
    Vadgaon Budruk,
    Sinhgad Road, Pune.
7   Shri. Sham Ramchandra Taware,
    Adult, Occupation: Social
    Worker & Member of Standing
    Committee, Pune Municipal
    Corporation, Residing at
    82, Parvati Gaon, Parvati
    Towers, Parvati,
    Pune - 411 009.
8   Mrs. Sangeeta Prasad
    Devkar, Adult, Occupation:
    Advocate, Social Worker &
    Member of Standing Committee,
    Pune Municipal Corporation,

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     Residing at 253, New Khadki, Yerawada,
     Pune - 411 006.
9    Shri. Sachin Ranganath Bhagat,
     Adult, Occupation: Social
     Worker & Member of Standing
     Committee, Pune Municipal
     Corporation, Residing at
     48/3, 4, Ganeshnagar,
     Vadgaon Sheri, Pune - 411 014.
10   Shri. Vikas Madhukar Mathakari,
     Adult, Occupation: Social
     Worker & Member of Standing
     Committee, Pune Municipal
     Corporation, Residing at
     8, Ratnali, 804, Shivajinagar,
     Pune - 411 005.
11   Shri. Bharat Bhanudas Vairag,
     Adult, Occupation: Social
     Worker & Member of Standing
     Committee, Pune Municipal
     Corporation, Residing at
     429/30, Dias Plot,
     Gultekadi, Pune - 411 037.
12   Mrs. Jyotsna Sardeshpande,
     Adult, Occupation : Social
     Worker & Member of Standing
     Committee, Pune Municipal
     Corporation, Residing at
     434, Yashodeep, Shaniwar Peth,

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     Pune-411 030.
13   Shri Manish Gajanan Salunke
     Adult, Occupation : Social
     Worker & Member of Standing
     Committee, Pune Municipal
     Corporation, Residing at
     180, Nana Peth, Pimpri Chowk,
     Pune-411 002.
14   Sou. Nirmala Wilson Hire
     Adult, Occupation : Social
     Worker & Member of Standing
     Committee, Pune Municipal
     Corporation, Residing at
     H-15/2779, Maitri Society,
     Maharashtra Housing Board, Yerwada,
     Pune-411 006.


                 Vs.


1    Shri. Ramesh Radhakrishna Phondage,
     Age 63 years, Occupation: Retired &
     Social Worker, Residing at - 54-B,
     Hanumannagar, Pune-411 016.
2    Shri. Sahadu Bhaurao Repale,
     Age 63 years, Occupation
     Advocate & Social Worker,
     Residing at Damodhar Apartments,
     Behind Divgi Metal, Erandwana Gaothan
     Pune-411 004.


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3     Shri. Maruti Sahebrao Bhapkar,
      Age 32 years, Occupation;
      Agriculturist & Social Worker
      Residing at - Sanjeevan Chawal,
      Mohannagar Chinchwad, Pune-411 019.
4     Mr. Dominic Albert Lobo,
      Age- 43 years, Occupation:
      Social Worker and Business
      Residing at Sangamnagar,
      S.No.4, Old Sangavi,
      Pune-411 027.
5     Shri. Sanjay Kumar,
      Adult, Occupation : Service
      Former Municipal Commissioner,
      Pune Municipal Corporation,
      Shivajinagar, Pune-411 005.
6     State of Maharashtra                        ....Respondents.


Mr. R.M. Pethe for the Petitioners.
Mr. Amit Palkar for the Respondent No.6-State.

                                        CORAM : A. S. GADKARI, J.

DATE : 15th FEBRUARY, 2021.

ORAL JUDGMENT:-

By the present Petition, the Petitioners have impugned Order

dated 19th January, 2005, passed by the learned II Additional Sessions

Judge, Pune in Criminal Revision Application No.33 of 2005 thereby,

dismissing the said Revision Application on the ground that, the Order

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impugned therein, dated 3rd December 2004, passed by the learned Judicial

Magistrate, First Class, (P.M.C.), Pune issuing process under Sections 167

and 409 read with Section 120 of the Indian Penal Code (for short, "the

IPC") against the Petitioners herein, in Regular Criminal Case No.22 of

2004 is an interlocutory Order.

2 Heard Mr. Pethe, learned counsel for the Petitioners.

Record indicates that, the Respondent Nos.1 to 4 (Original 3

Shri. Mukari Shetty Algude, Adult, Occupation: Social Worker & Member of

Standing Committee, Pune Municipal Corporation, Residing at 336, Old

Wadarwadi, Pune - 411 016.3 Shri. Mukari Shetty Algude, Adult,

Occupation: Social Worker & Member of Standing Committee, Pune

Municipal Corporation, Residing at 336, Old Wadarwadi, Pune - 411

016.Complainant) have been duly served and an Affidavit of Service dated

8th December, 2005 has been filed by the Petitioners on record.

The Respondent No.5 is the former Municipal Commissioner of

Pune Municipal Corporation and is a formal party to the present Petition.

Respondent No.6, State of Maharashtra is also formal party and is being

represented by the learned APP.

3 Record indicates that, the Respondent Nos.1 to 4 have filed the

aforestated Complaint in the Court of Judicial Magistrate, First Class,

(P.M.C.), Pune on 28th October, 2004 for the alleged offences committed by

the Petitioners under Sections 166, 167, 409 and 465 read with Section

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120(b) of the IPC. Learned Trial Court, after recording verification of

Respondent No.1-Shri. Ramesh R. Dhondage, was pleased to issue process

against all the Petitioners and Respondent No.5, the then Commissioner of

Pune Municipal Corporation under Sections 167, 409 read with Section 120

of the IPC, by its Order dated 3rd December, 2004.

4 Feeling aggrieved by the said Order dated 3rd December, 2004,

the Petitioners preferred Criminal Revision Application No.33 of 2005, in

the Court of II Additional Sessions Judge, Pune. The Revisional Court, by

its impugned Judgment and Order dated 19 th January, 2005 was pleased to

dismiss the said Revision Application predominantly on the ground that, an

Order of issuance of process is an interlocutory Order and therefore, the

said Order cannot be challenged by way of Revision, invoking the provisions

of Section 397 of the Code of Criminal Procedure. The Revisional Court has

relied on two decisions of the Hon'ble Supreme Court in the impugned

Order, namely (i) Adalat Prasad Vs. Rooplal Jindal & Ors. Reported in

(2004) 7, S.C.C. 338 and (ii) K.M. Mathew Vs. State of Kerala reported in

(1992) 1 S.C.C. 217.

5 Mr. Pethe, learned counsel for the Petitioners submitted that,

the Trial Court while passing the impugned Order did not take into

consideration the decisions of the Hon'ble the Supreme Court in the case of

Madhu Limaye Vs. State of Maharashtra reported in (1977) 4 SCC 551 :

AIR 1978 SC 47 and V.C. Shukla Vs. State through CBI, reported in 1980

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Supp. SCC 92 : AIR 1980 SC 962 in which it is held that, Order issuing

process can be challenged in the Revisional jurisdiction under Section 397

of the Cr.P.C.. He therefore, prayed that, the impugned Order dated 19 th

January 2005, passed by the learned II Additional Sessions Judge, Pune

may be quashed and set aside by relegating the Petitioners to the

jurisdiction of Revisional Court.

6 A useful reference, at this stage, can be made to the decision of

the Hon'ble Supreme Court in the case of State of Gujarat Vs. Afroz

Mohammed Hasanfatta, reported in AIR 2019 SC 2499 wherein, after

taking into consideration various decisions in the field, the Hon'ble

Supreme Court in paragraph No.25 has observed as under:-

25 After referring to various judgments, in Urmila Devi (AIROnline 2013 SC 343), this Court summarised the conclusion as under:-

21. .......

21.1. The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 CrPC would be an order of intermediatory or quasi-final in nature and not interlocutory in nature.

21.2. .......

21.2. ......

21.3. ......

........

23. Therefore, the position has now come to rest to the effect that the revisional jurisdiction under

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Section 397 Cr.P.C. is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons".

It is thus clear that, Revision against the Order of issuance of

process is maintainable.

7 In view of the above, the impugned Judgment and Order dated

19th January, 2005 passed by the learned II Additional Sessions Judge, Pune

in Criminal Revision Application No.33 of 2005 is quashed and set aside.

Criminal Revision Application No.33 of 2005, is restored to the file of II-

Additional Sessions Judge, Pune. Learned Judge of the Revisional Court is

directed to hear all the concerned in the said Revision Application and pass

appropriate Orders as per the provisions of law.