Bombay High Court
Pooja W/O Vishal Maulikar vs Vishal S/O Bhimrao Maulikar And ... on 13 July, 2022
Bench: V. G. Joshi
Judgment apl462.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] No. 462/2022.
Mrs.Pooja w/o Vishal Maulikar,
Aged about 32 years, Occupation
Service, resident of Flat No.14-B,
Type-IV, CPWD Quarter, Bunglow No.17,
Near Telankhedi Hanuman Mandir,
Civil Lines, Nagpur. ... APPLICANT.
VERSUS
1.Vishal s/o Bhimrao Maulikar,
Aged about 37 years, Occupation
Service, resident of C/o. Subhash
Deshmukh, Plot No.11, Anupan State
Bank Colony, Near Taste of South,
Biyani Square, Camp Amravati.
2.The State of Maharashtra,
through Police Station Officer,
Police Station, Gittikhadan, Nagpur. ... NON-APPLICANTS.
---------------------------------
Mr. S.S. Paliwal, Advocate for the Applicant.
Mr.N.Patil, Advocate for Non-applicant No.1.
Mr.S.M. Ukey, Addl.P.P. for the Non-applicant No.2.
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CORAM : VINAY JOSHI, J.
Rgd. RAKESH GANESHLAL DHURIYA
14.07.2022 16:27
Judgment apl462.22
DATE : JULY 13, 2022.
ORAL JUDGMENT :
Heard. Admit. Considering the controversy involved in the
matter and by consent of the learned Counsel for the parties,
Criminal Application is taken up for final disposal at the stage of
admission.
[
2. The applicant, an accused of a private complaint bearing
Criminal M.A. No.4184/2019 has called in question the order of
issuance of process dated 07.12.2021 passed by the Judicial
Magistrate First Class, Court No.10, Nagpur.
3. The learned Counsel appearing on behalf of the applicant
would contend that the complaint no where discloses entrustment
and therefore, issuance of process under Sections 405 and 406 of the
Indian Penal Code is wholly erroneous.
4. It is a dispute between husband and wife where the
Rgd. RAKESH GANESHLAL DHURIYA
14.07.2022 16:27
Judgment apl462.22
husband has lodged a private complaint alleging breach of trust
relating to voluminous household articles of which list is annexed
along with the complaint. It reveals that the learned Magistrate has
called the report of police in terms of Section 202 of the Code and
after going through, has held that there is sufficient material to
proceed, therefore, process was issued.
5. The impugned order no where discloses application of
mind. The learned Magistrate ought to have considered the contents
of the complaint, obviously not a defence at this juncture. The
reasoning is in a single line which reads as under :
[
"Having gone through the material on record
and after hearing the complainant, I find that
there is sufficient material on record to proceed
against accused under Sec. 405 and 406 of
I.P.C."
6. Apparently the order no where discloses as to what has
weighed to the learned Magistrate to hold that a prima facie case is
made out, or on which basis the mind has been applied. The
practice of passing stereotype order is highly deprecated. The order
Rgd. RAKESH GANESHLAL DHURIYA
14.07.2022 16:27
Judgment apl462.22
of issuance of process does not require elaborate reasoning, but, at
least it should reflect due application of mind. Any how, the
impugned order would not sustain in the eyes of law, as it loudly
demonstrates total non-application of mind. As a result, the
impugned order dated 07.12.2021 passed by the Judicial Magistrate
First Class, Nagpur in Cri.M.A.No.4184/2019 is hereby quashed and
set aside. The matter is remanded back to the Magistrate to consider
entire material and pass a speaking order in accordance with law.
7. Criminal Application is accordingly allowed and disposed
of in aforesaid terms.
JUDGE
Rgd. RAKESH GANESHLAL DHURIYA
14.07.2022 16:27
