Hemal Harikishan Nadiyana And 4 ... vs State Of Mha. Thr. Pso Ps Butibori ...
2022 Latest Caselaw 13317 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR.

      CRIMINAL APPLICATION (APL) NO.1645 OF 2022

1.         Hemal Harikishan Nadiyana,
          (in complaint name of applicant
          is wrongly mentioned as Hemant )
          aged about 48 years,
          Occupation- Agriculturist,
           R/o. Pande Layout, Khamla
          Road, Nagpur District :- Nagpur

2.        Ramchandra Anandrao Mahure,
          Aged about 41 Years,
          Occupation- Agriculturist

3.        Prabhakar Sadashiv Mahure,
          Aged about 77 years,
          Occupation - Agriculturist.

4.        Tulsiram Santosh Parase,
          Aged about 43 Years,
          Occupation- Agriculturist

5.        Bhagwan Barsuji Namhe,
          Aged about 49 years,
          Occupation- Agriculturist,
          Applicants 2 to 5 All
          R/o Deoli, Taluka : Hingana,
          District :- Nagpur                  ..APPLICANTS


                          // VERSUS //

       State of Maharahstra, through
       Range Forest Officer, Butibori Range
       Nagpur Rural, District Nagpur        ... RESPONDENT
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Shri R.R. Vyas, Advocate for the applicants.
Shri S.A. Ashirgade, APP for the non-applicant.
____________________________________________________


CORAM : G. A. SANAP, J.

DATE:- 20/12/2022

ORAL JUDGMENT

1. ADMIT. By consent of the learned Advocates for the

parties, taken up for final disposal at the stage of issuance of notice.

2. Heard Shri Rajnish Vyas, learned Advocate for the

applicants and Shri S.A. Ashirgade, learned APP for the non-

applicant/State. Perused the record and proceedings.

3. Learned Advocate for the applicants fairly concedes

that the application made by the applicants/accused under Section

258 of the Code of Criminal Procedure for stoppage of proceeding

was not maintainable. In view of the statement, it is not necessary

to examine the correctness or legality of the order.

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4. Learned Advocate took me through the report and

submitted that the order of taking of cognizance passed by the

learned Judicial Magistrate First Class, Hingna dated 23.11.2021

is not a speaking order. Learned Advocate submitted that since the

order is not a speaking order, a fundamental irregularity has been

crept in the proceeding. Learned Advocate submitted that this

defect/irregularity can be cured by issuing necessary directions to

the learned Judicial Magistrate, First Class to pass a speaking order

on the basis of the facts stated in the complaint and the material

filed with the complaint.

5. Learned APP for the State submitted that learned

Magistrate has taken cognizance on the basis of the complaint.

Learned APP has submitted that in order to remove the

defect/irregularity from the proceeding, this Court may direct the

learned Magistrate to pass a speaking order on the basis of the facts

stated in the complaint and material filed with the complaint.

6. The order passed by the learned Judicial Magistrate

First Class on the complaint needs to be reproduced.

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It reads as follows:-

"Complaint presented by Forest Officer. It be registered as Sum- Cri.Case No.1198/2021."

7. It is seen on perusal of the impugned order that the

order is not a speaking order. In my view, considering the nature

of the proceeding, learned Judicial Magistrate needs to be directed

to pass a speaking order of taking cognizance.

8. In view of this the application is partly allowed.

Learned Judicial Magistrate, First Class, Hingna is

directed to pass speaking order of taking cognizance on the basis

of the facts stated in the complaint/report and the documents

submitted by the Forest Officer.

9. Criminal Application stands disposed of.

JUDGE

manisha Signed By:MANISHA ALOK SHEWALE

Signing Date:21.12.2022 15:38