Bombay High Court
Dsd Progressive Associates Thr. ... vs Shirish S/O. Premchand Jain (Ori. ... on 21 September, 2021
Bench: V.M. Deshpande, Amit B. Borkar
1 Cr.W.P.No.167.2019-J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.167 OF 2019
1. DSD Progressive Associates,
a partnership firm, through its Partner,
Dhananjay S/o. Laxmanrao Deshpande,
Having its office at DSD Vishwa,
Tahsil Road, Buldhana.
2. Dhananjay S/o. Laxmanrao Deshpande,
Aged about 50 years,
Occupation: Business,
3. Nitin S/o. Wasudeo Saoji,
Aged about 52 years,
Occupation : Business,
4. Ajay S/o. Janrao Dhage,
Aged about 56 years,
Occupation : Business,
Petitioner Nos. 2 to 4
residents of DSD House, - (Original Non-Applicant
Near Tahsil Square, Dalal Layout, Nos.4 to 7)
Buldhana. ....PETITIONERS
---- VERSUS ----
1. Shirish S/o. Premchand Jain,
Aged about 42 years, Occupation : Service,
R/o. DSD Dalal Lay-out,
House No.5, Tahsil Road, Buldhana. -- (Ori. Applicant)
2. Police Station Officer, -- (Ori.Non-Applicant No.1)
Police Station - Buldhana City,
Buldhana. .... RESPONDENTS.
_________________________________________________________________________________________________________________________________
Mr. Anand S. Jaiswal, Senior Advocate with Mr. N. G. Mohrir, Advocate for the
petitioners.
Shri U. J. Deshpande, Advocate for the respondent No.1.
Shri S. M. Ghodeswar, A.P.P. for the respondent No.2/State.
_________________________________________________________________________________________________________________________________
CORAM : V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATE : 21.09.2021.
JUDGMENT : [PER: AMIT B. BORKAR, J.]
1. Heard.
2. Rule. Rule is made returnable forthwith.
3. By this petition under Article 226 and 227 of the
Constitution of India, the petitioners are challenging judgment and
order dated 02.02.2019 passed by the Additional Sessions Judge,
Buldhana allowing Criminal Revision No.3/2017 arising out of
rejection of Miscellaneous Criminal Case No.443/2016 by which
the learned Judicial Magistrate First Class (Court No.3), Buldhana
rejected request for investigation under Section 153(3) of the Code
of Criminal Procedure.
4. The respondent No.1 herein filed Miscellaneous
Criminal Case No.443/2016 for a direction to conduct investigation
into the offences alleged against the petitioners herein under
Sections 3, 4, 4A, 5, 6, 7, 8, 10, 11 and 12A of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 and Sections 406, 420 and
120-B of the Indian Penal Code. The learned Judicial Magistrate
First Class (Court No.3), Buldhana by order dated 17.12.2016
rejected the said application. The respondent No.1 therefore filed
Criminal Revision No.3/2017, which is allowed by the impugned
judgment and order dated 02.02.2019. The petitioners have
challenged the said order dated 02.02.2019 by way of present
petition along with the First Information Report registered in
consequence of the said order.
5. Mr. Anand Jaiswal, the learned Senior Advocate along
with Mr. N. G. Moharil, learned Advocate for the petitioner
submitted that the petitioners were not made party to the revision
application and the said revision has been allowed without giving
opportunity of hearing to the present petitioners. Mr. U. J.
Deshpande, the learned Advocate appearing for the respondent
No.1 does not dispute the position that the petitioners were not
made party to the said revision application, but submitted that it is
not necessary for the respondent No.1 to add the petitioners as
respondents to the said criminal revision application.
6. Mr. Anand Jaiswal, the learned Senior Advocate invited
our attention to the judgment of the Hon'ble Apex Court in the case
of Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai
Mohanbhai Patel & Ors. reported in (2012) 10 SCC 517, wherein
the Hon'ble Apex Court has taken a view that any revision
challenging order under Section 156(3) of the Code of Criminal
Procedure, the accused is necessary party. We are, therefore,
satisfied that the issue involved in the present Writ Petition is
squarely covered by the judgment in the case of Manharibhai
Kakadia (supra).
7. We therefore, pass following order.
i] The impugned judgment and order dated 02.02.2019
passed by the Additional Sessions Judge, Buldhana in Criminal
Revision No.3/2017 is quashed and set aside.
ii] The consequent First Information Report No.82/2019,
dated 18.02.2019 (Annexure-K) registered with the Police Station
Buldhana City for the offences punishable 463, 467 and 471 of the
Indian Penal Code and under the provisions of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 is also quashed and set aside.
iii] The Criminal Revision No.3/2017 stands revive and
restore to the file of the Additional Sessions Judge, Buldhana.
iv] The respondent No.1 shall add present petitioners as
respondents in the said Criminal Revision and the learned
Additional Sessions Judge, Buldhana is directed to decide the
Criminal Revision No.3/2017 on its own merits and according to
law, after giving opportunity of hearing to the present petitioners.
8. Rule is made absolute in the above terms. Pending
application(s), if any, stand(s) disposed of.
JUDGE JUDGE
RGurnule
