Shyamkant S/O Ramrao Patil vs Bhikanrao S/O Shamrao Bibne And ...
2022 Latest Caselaw 9935 Bom

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

             CRIMINAL WRIT PETITION NO. 91/2022

        Syamkant S/o Ramrao Patil,
        aged about 55 years, Occ. Service,
        C/o. Police Commissioner Office Mill
        Corner, Aurangabad, Tq. & Dist.
        Aurangabad.

                                               ... PETITIONER

                             VERSUS

   1.   Bhikanrao S/o Shamrao Bibne,
        aged about 67 years, Occ.
        Pensioner, R/o. Wankhede
        Layout, Buldana, Tah. & Dist.
        Buldana & anr.

   2.   State of Maharashtra, through
        Police Station Officer, P. S.
        Buldana City, Tq. & Dist.
        Buldana.



                                         ... RESPONDENTS.
_____________________________________________________________
       Mr. A. J. Thakkar, Advocate for petitioner.
       Mrs. M. Deshmukh, APP for respondent No.2/State.
______________________________________________________________

                CORAM                    : VINAY JOSHI, J.

                DATE OF JUDGMENT         : 28.09.2022.


ORAL JUDGMENT :

             RULE. Rule is made returnable forthwith.

2. Heard finally by consent of respective parties at the stage of

admission.

3. The respondent No. 1 though filed written submission,

however remained absent at the time of hearing.

4. The petitioner is accused No. 2 in Criminal Complaint Case

No. 37/2011. The order of issuance of process was passed against him,

which he challenged in revision, however the Revisional Court

dismissed the revision vide impugned order dated 06.01.2022 by

holding that revision is not maintainable which is the subject matter of

challenge.

5. The facts are such that the respondent No. 1 complainant

has filed an application to the Magistrate numbered as criminal case

No. 37/2011 seeking direction under Section 156(3) of the Code of

Criminal Procedure ('Code') for registration of crime for the offence

punishable under Sections 420, 221, 222, 438, 471 read with Section

34 of the Indian Penal Code. Considering the allegations levelled

against the accused Nos 1 and 2 i.e. accused No. 1 is D. B. Tadvi and

accused No. 2 - Shyamkant Ramrao Patil - petitioner, the Magistrate at

pre-cognizance stage, directed the Police to initiate action in terms of

Section 156(3) of the Code and submit the report. In turn, the Police

have registered crime No. M.Case 3/2011 dated 07.05.2011 and

conducted investigation. After completion of investigation, the Police

have filed B-summary report to the Magistrate on 05.12.2012. It

reveals that the original complainant has objected to the report and

therefore, the learned Magistrate has directed complainant to lead

evidence by treating the original application as a complaint. In

pursuance of that, the complainant led evidence on the basis of which

the learned Magistrate has declined to issue process against accused

No. 1 Tadvi, however, issued process against accused No. 2 i.e.

petitioner vide order dated 21.02.2017. Being aggrieved by said

decision, the petitioner filed criminal revision No. 62/2017 challenging

the order of issuance of process whilst original complainant filed

Criminal Revision No. 51/2017 challenging the dismissal of complaint

against accused No. 1 Tadvi. The Sessions Court held that the

petitioner is challenging virtually registration of First Information

Report ('FIR') No. 03/2011 and thus, the revision is not maintainable.

6. It is strenuously argued that the Revisional Court utterly

failed to consider position of law that the petitioner never challenged

registration of FIR No. 03/2011 since already the Police have filed

B-summary report. It is contended that after B-summary report, the

FIR No. 03/2011 nowhere survives. It reveals that the Police have

registered Crime No. 03/2011, however, it was closed by filing

B-summary i.e. by holding that the allegation levelled in the complaint

are false. On receipt of said report and objection, the Magistrate

chooses to treat the original application as private complaint and

accordingly, proceeded in terms of Chapter XV of the Code. The

Magistrate has examined the complainant, witnesses and thus, having

been found sufficient ground for proceeding against the petitioner, has

issued process in terms of Section 204 of the Code. The Revisional

Court has misconceived that the petitioner is challenging the FIR,

which it was not in existence. The challenge raised before the

Revisional Court was purely to an order of issuance of process dated

21.02.2017. It is settled law that the order of issuance of process is

amenable to the revisional jurisdiction in terms of Section 397 of the

Code.

7. In above circumstances, the Revisional Court is required to

deal the challenge on its own merits. In view of that petition is

allowed. The impugned order dated 06.01.2022 passed in Criminal

Revision Application No. 62/2017 is hereby quashed and set aside. The

revision is restored at its original stage with direction to decide the

same in accordance with law. Petition is disposed of accordingly.

(VINAY JOSHI, J.)

Gohane

Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

2022.09.29 10:55:22 +0530