[Cites 24, Cited by 0]
Bombay High Court
Hiralal Laxminarayan Jaiswal And ... vs The State Of Maharashtra And Another on 4 December, 2025
2025:BHC-AUG:35722
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2795 OF 2025
1. Hiralal S/o. Laxminarayan Jaiswal,
Age-70 years, Occu-Business & Agriculture,
2. Shivkumar S/o. Laxminarayan Jaiswal,
Age-67 years, Occu-Business & Agriculture
Both R/o. Laxmi Opset, Shivaji Road,
Village Kannad, Dist. Chh. Sambhajinagar ...APPLICANTS
VERSUS
1. The State of Maharashtra
Police Station Kannad, Tq. Kannad
Dist. Chh. Sambhajinagar
2. Shaikh Iqubal S/o. Shaikh Gani Patel,
Age-46 years, Occu-Business,
R/o. Patel Mandi, Khultabad, ...RESPONDENTS
Dist. Chh. Sambhajinagar (R/2 is Ori. Complainant)
Mr. Rupesh Jaiswal, Advocate for the applicants (through VC)
Mr. C. V. Thombre, Advocate for the respondent No.2
Mr. K. S. Hoke Patil, APP for the respondents/State
CORAM : ABHAY J. MANTRI, J.
DATE : 04th DECEMBER, 2025
ORAL JUDGMENT :
1. Heard. Rule. Rule is made returnable forthwith and
heard finally with the consent of the respective parties at the stage of
admission.
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2. By this application, the applicants/proposed accused
Nos. 1 and 2 seek to invoke an inherent jurisdiction of this court
under Section 482 of the Code of Criminal Procedure (for short the
'Cr. P. C.') for quashing and setting aside the private complaint bearing
RCC NO. 332/2019 for the offences punishable under Sections 416,
420, 468, & 470 of the Indian Penal Code (for short the 'IPC') pending
before the learned Judicial Magistrate First Class, Kannad (for short
the 'learned Magistrate') and issuance of process order dated 19-06-
2025 passed therein.
3. The learned advocate for the applicants vehemently
contended that the learned Magistrate has not applied his mind while
passing the order of issuance of process dated 19-06-2025, as prima
facie no offence has been made out against the applicants. Therefore,
as per the law laid down by the Hon'ble Apex Court in M/s JM
Laboratories and others Vs State of Andhra Pradesh and another ,
passing of the order of issuance of the process is illegal and liable to
be quashed and set aside.
4. Secondly, he submitted that, as per the complainant's
case, the alleged document was executed 35 years ago and was
averred in the complaint. He drew my attention to the complaint in
that regard and submitted that, on account of the delay, the
complaint is also liable to be rejected. However, the learned
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Magistrate has not considered the said facts and erred in passing the
order.
5. Thirdly, he drew my attention to a police report
submitted as per section 202 of the Cr. P. C. before the learned
Magistrate, and he also drew my attention to the observations made
therein. The enquiry officer has categorically observed that for more
than 35 years, the applicants have been in possession of the disputed
property. Therefore, there is no substance in the complaint lodged by
respondent No. 2, and as such, the complaint is liable to be quashed
and set aside. To buttress his submission, he has relied upon
judgments as follows:
1. Pepsi Food Ltd and another Vs Special Magistrate
and others 1998 AIR SC 128
2. Dhariwal Tabacco Products Ltd and others Vs State
of Maharashtra 2009 AIR SC 1032
3. Mohit Alias Sonu and others Vs State of UP AIR
2013 SC 2248
4. Prabhu Chawla Vs State of Rajasthan and another
2016 AIR SC 4245
5. M/s JM Laboratories and others Vs State of
Andhra Pradesh and another
6. Lallankumar Singh and others Vs State of
Maharashtra 2022 LiveLaw (SC) 833
6. The learned APP for the State submitted that the police
have filed the report stating that there is no substance in the
complaint lodged by respondent No. 2. Therefore, he submitted that
as per the police report, no ingredients of sections 416, 420, 468, &
470 of the IPC are attracted against the applicants.
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7. As against, the learned advocate for respondent No.2
submitted that initially the learned Magistrate disposed of the
complaint under Section 256 of the Cr. P. C. which he has challenged
before the learned Additional Sessions Judge and the learned
Additional Sessions Judge by order dated 13-02-2024 allowed the
revision and quashed and set aside the order dated 07-02-2023
passed by the learned Magistrate and " directed the learned
Magistrate to restore the case to its original number and after issuing
notices to both the parties, proceed with the case in accordance with
the law." However, the applicants have not challenged the said order;
therefore, it cannot be said that the learned Magistrate's order for the
issuance of process is illegal or unjust. But the learned Magistrate has
only followed the direction given by the learned Additional Sessions
Judge. Hence, he urged for the dismissal of the application.
8. To buttress his submission, he has relied upon the
judgment of this court in Rajiv Gandhi and others Vs the State of
Maharashtra and Ors 2014 All MR (Cri) 529 and submitted that once
the learned Magistrate has exercised the discretion after considering
all relevant aspects of the matter, his discretion is not liable to be
interfered with by the Superior Courts. Therefore, he submitted that
the application is liable to be dismissed.
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9. Perused the order dated 19-06-2025. I would like to
reproduce the same as under:
"The file is restored and taken on board as per the order
of the Hon'ble Sessions Court, Aurangabad in Cri.
Revisión No.176/2023. Issue notice to the proposed accused
persons."
10. Bare perusal of the above order, it appears that the
learned Magistrate has not assigned the reasons while passing the
order. The summoning order is totally a non-speaking one. In fact,
the learned Magistrate has to apply his mind and pass the speaking
order. But he failed to do so and passed the order. Therefore, the fact
itself indicates that the order passed by the learned Magistrate is
contrary to the mandate laid down by the Hon'ble Apex court in M/s
JM Laboratories (supra) and therefore, cannot be sustained in the eyes
of law and on that ground alone, the said order is liable to be set
aside.
11. Apart from this, even assuming that the learned
Additional Sessions Judge has passed the order on 13-02-2024 and
directed the learned Magistrate to restore the complaint to its original
number. Similarly, observed that, after issuance of notice to both
parties, the case should proceed in accordance with the law. It is
pertinent to note that respondent No. 2 has challenged the order
about the disposal of the complaint under Section 256. Therefore, it
was incumbent on the learned Additional Sessions Judge to consider
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the said order on its merits, and, at the most, the learned Sessions
Judge could set aside the said order and restore the matter. However,
it was improper to direct the learned Magistrate to issue notice. In
fact, it is the discretion of the learned Magistrate, as submitted by the
learned counsel for the applicants himself, to pass an order for the
issuance of process after going through the record and the allegations
in the complaint. But, the passing of the order by the learned
Additional Sessions Judge, thereby encroaching on the powers of the
learned Magistrate to consider the complaint. Therefore, in my view,
the order passed by the learned Additional Sessions Judge is illegal
and perverse in respect of clause No. 3 of the operative part of the
order to direct the learned Magistrate to issue notices.
12. I would like to reproduce paragraph 35 of the judgment
in INOX air products limited now known as INOX air products private
limited and another Vs the State of Andhra Pradesh observed in para
8 of the judgment in M/s. JM Laboratories (supra) as under
35. This Court has clearly held that summoning of an accused in
a criminal case is a serious matter. It has been held that the
order of the Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case and the law
applicable thereto. This Court held that the Magistrate is
required to examine the nature of allegations made in the
complaint and the evidence, both oral and documentary in
support thereof and as to whether that would be sufficient for
proceeding against the accused. It has been held that the
Magistrate is not a silent spectator at the time of recording of
preliminary evidence before summoning the accused.
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13. I would like to reproduce para 21 & 22 of the judgment
in Pepsi Food Ltd. (supra) as under:
21. The questions which arise for consideration are if, in the
circumstances of the case, the appellants rightly approached the
High Court under articles 226 and 227 of the Constitution, and
if so, whether the High Court was justified in refusing to grant
any relief to the appellants because of the view which it took of
the law and the facts of the case. We have, thus, to examine the
power of the High Court under Articles 226 and 227 of the
Constitution and section 482 of the Code.
22. It is settled that the High Court can exercise its power of judicial
review in criminal matters. In State of Haryana and others vs.
Bhajan Lal and others 1992 Supp (1) SCC 335, this court
examined the extraordinary power under article 226 of the
Constitution and also the inherent powers under Section 482 of
the Code which it said could be exercised by the High Court
either to prevent abuse of the process of any court or otherwise
to secure the ends of justice. While laying down certain
guidelines where the court will exercise jurisdiction under these
provisions, it was also stated that these guidelines could not be
inflexible or laying rigid formulae to be followed by the facts
and circumstances of each case, but with the sole purpose to
prevent abuse of the process of any court or otherwise to secure
the ends of justice. One of such guidelines is where the
allegations made in the first information report or the
complaint, even if they are taken at their face value and
accepted in their entirety, do not prima facie constitute any
offence or make out a case against the accused. Under Article
227, the power of superintendence by the High Court is not only
of an administrative nature but is also of a judicial nature. This
article confers vast powers on the High Court to prevent the
abuse of the process of law by the inferior courts and to see that
the stream of administration of justice remains clean and pure,
The power conferred on the High Court under Articles 226 and
227 of the constitution and under Section 482 of the Code have
no limits but more the power more due care and caution is to be
exercised invoking these powers. When the exercise of powers could
be under Article 227 or Section 482 of the Code, it may not always be
necessary to invoke the provisions of Article 226. Some of the
decisions of this Court laying down principles for the exercise of
powers by the High Court under Articles 226 and 227 may be
referred to.
14. Also, I would like to reproduce para 28,29 & 30 of the
judgment in Lallankumar Singh (supra) as under:
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"28. The order of issuance of the process is not an empty
formality. The Magistrate is required to apply his mind as
to whether sufficient ground for proceeding exists in the
case or not. The formation of such an opinion is required
to be stated in the order itself. The order is liable to be
set aside if no reasons are given therein while coming to
the conclusion that there is a prima facie case against the
accused. No doubt that the order need not contain
detailed reasons. A reference in this respect could be
made to the judgment of this Court in the case of Sunil
Bharti Mittal vs. Central Bureau of Investigation, which
reads thus:
"51. On the other hand, Section 204 of the Code deals
with the issue of process, if in the opinion of the
Magistrate, taking cognizance of an offence, there is
sufficient ground for proceeding. This section relates to
the commencement of a criminal proceeding. If the
Magistrate 9 (2015) 4 SCC 609 taking cognizance of a
case (it may be the Magistrate receiving the complaint or
to whom it has been transferred under Section 192),
upon a consideration of the materials before him (i.e.
the complaint, examination of the complainant and his
witnesses, if present, or report of inquiry, if any), thinks
that there is a prima facie case for proceeding in respect
of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to the grant or
refusal of process, and it must be judicially exercised. A
person ought not to be dragged into court merely
because a complaint has been filed. If a prima facie case
has been made out, the Magistrate ought to issue
process, and it cannot be refused merely because he
thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for
proceeding" appearing in Section 204 are of immense
importance.
It is these words which amply suggest that an opinion is
to be formed only after due application of mind, that
there is sufficient basis for proceeding against the said
accused, and formation of such an opinion is to be stated
in the order itself. The order is liable to be set aside if no
reason is given therein while coming to the conclusion
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that there is a prima facie case against the accused,
though the order need not contain detailed reasons. A
fortiori, the order would be bad in law if the reason
given turns out to be ex facie incorrect."
29. A similar view has been taken by this Court in the
case of Ashoke Mal Bafna (supra).
30. In the present case, leaving aside there being no
reasons in support of the order of the issuance of
process, as a matter of fact, it is clear from the order of
the learned Single Judge of the High Court, that there
was no such order passed at all. The learned Single
Judge of the High Court, based on the record, has
presumed that there was an order of issuance of process.
We find that such an approach is unsustainable in law.
The appeal, therefore, deserves to be allowed."
15. Apart from the above, I have gone through the
complaint. Prima facie, it seems that it does not attract the
ingredients of sections 416, 420, 468 & 470. However, the allegations
in the said complaint appear vague and omnibus. Therefore, it would
not be proper to force the applicants to go through the tribulation of
the trial on the basis of general and omnibus allegations which
cannot be manifest in the situation to attract the ingredients of
sections 416, 420, 468 & 470.
16. Besides, peruse the report submitted by the Enquiry
Officer under Section 202 of the Cr. P. C. before the learned
Magistrate, wherein the enquiry officer has categorically observed
that during the enquiry, he found that the sale deed executed was
found to be genuine, and therefore, he does not find that the
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applicants have cheated or prepared a forged document in respect of
the property in dispute. Similarly, he observed that for the last 35
years, the applicants have been in possession of the said disputed
property and therefore, held that he does not find any substance in
the complaint. But, with a view to harassing the applicants, the said
complaint was filed.
17. Having considered the above discussion and the police
report under section 202, as well as averments in the complaint,
prima facie it appears that no case is made out for issuance of process
for the offences punishable under Sections 416, 420, 468 & 470.
Similarly, it seems that, according to respondent No. 2, the alleged
document was executed on 16-04-1987. Likewise, he failed to state in
the complaint how he acquired title to the disputed property, how he
lodged the complaint, and how the applicants defrauded him;
therefore, in my view, the applicants have made out a case to invoke
the inherent jurisdiction of this court to quash the proceedings.
18. It further appears that the learned Magistrate has not
assigned the reasons while passing the order. The summoning order
is totally a non-speaking one. In fact, the learned Magistrate has to
apply his mind and pass the speaking order. But he failed to do so
and passed the order. Therefore, the fact itself indicates that the
order passed by the learned Magistrate is contrary to the mandate
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laid down by the Hon'ble Apex court in M/s JM Laboratories (supra)
and therefore, cannot be sustained in the eyes of law and on that
ground also, the said order is liable to be set aside.
19. Consequently, the criminal application is allowed in
terms of the prayer clause (B). As a sequel, the proceeding bearing
RCC No. 332/2019 is hereby quashed and set aside. The rule is made
absolute. No order as to cost.
[ABHAY J. MANTRI, J. ]
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