Bombay High Court
Sambhaji Shivaji More And Another vs The State Of Maharashtra And Another on 29 July, 2025
2025:BHC-AUG:19924
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 733 OF 2024
1. Sambhaji s/o Shivaji More,
Age : 31 years, Occu. : Agri.,
2. Vitthal s/o Ramrao More,
Age : 64 years, Occu. : Agri.,
3. Ranjit Vitthalrao More,
Age : 34 years, Occu. : Agri.,
All R/o. : Valag, Tq. Degloor,
Dist. Nanded. .. Petitioners
(Orig. accused Nos. 1, 2 & 3
respectively)
Versus
1. The State of Maharashtra
Through P.S.O., Ramtirth Police Station,
Tq. Naigaon, Dist. Nanded.
2. Uttamrao s/o Datta Patil,
Age : Nil, Occu. : Agri.,
R/o. : Valag, Tq. Degloor,
Dist. Nanded. .. Respondents
(Orig. Complainants)
WITH
CRIMINAL WRIT PETITION NO. 731 OF 2024
1. Sambhaji s/o Shivaji More,
Age : 31 years, Occu. : Agri.,
2. Ranjit Vitthalrao More,
Age : 34 years, Occu. : Agri.,
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All R/o. : Valag, Tq. Degloor,
Dist. Nanded. .. Petitioners
(Orig. accused Nos. 1, 2
respectively)
Versus
1. The State of Maharashtra
Through P.S.O., Ramtirth Police Station,
Tq. Naigaon, Dist. Nanded.
2. Uttamrao s/o Datta Patil,
Age : Nil, Occu. : Agri.,
R/o. : Valag, Tq. Degloor,
Dist. Nanded. .. Respondents
(Orig. Complainants)
Mr. Ajinkya Reddy, Advocate for the Petitioners in both the
matters.
Mr. R. B. Dhaware, APP for Respondent No. 1 in both the matters.
Mr. V. R. Dhorde, Advocate for Respondent No. 2 in both the
matters.
CORAM : KISHORE C. SANT, J.
Date on which reserved for order : 03rd July, 2025.
Date on which order pronounced : 29th July, 2025.
FINAL ORDER :-
. Since in both the petitions the parties are same and since the
issue involved is also similar, both the matters are taken up
together.
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2. Heard. By consent of the parties taken up for final disposal.
3. Criminal Writ Petition No. 733/2024 is filed by original
accused persons in Criminal M.A. No. 105/2021 challenging an
order of issuance of process in the said Criminal M.A. dated
20.01.2022 for the offencess punishable under Sections 384, 506,
511 r/w Section 34 of the Indian Penal Code (for short "I.P.C."). In
Criminal Writ Petition No. 731/2024, a prayer is for quashing and
setting aside the order dated 16.03.2021 passed in R.C.C. No.
191/2019 by the learned J.M.F.C., Degloor thereby issuing process
against the petitioners for offences punishable under Sections 457,
380, 506 r/w Section 34 of the I.P.C. The petitioner Nos. 1 and 3
in Criminal Writ Petition No. 733/2024 are the petitioners in
Criminal Writ Petition No. 731/2024.
4. The facts in short in Criminal Writ Petition No. 733/2024
are that, respondent No. 2 filed miscellaneous application seeking
directions under Section 156(3) of the Code of Criminal
Procedure (for short "Cr.P.C."). It is the allegation that, the
complainant happens to be President of one Ashram school at
Valag, District Nanded. The complainant is related to accused
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No. 1 as accused No. 1 happens to be brother in law of son of the
complainant. Accused Nos. 2 and 3 are the uncle and cousin of
accused No. 1. The petitioner Nos. 1 to 3 are accused Nos. 1 to 3
respectively. It is alleged that, there is dispute about the land of
the Ashram school. The accused persons started asking for
transfer or to change the location of the school. It is threatened
that, if the school is not transferred to any other school, the
accused will abduct the children from the school. These threats
were given to the employees in the school. On 02.02.2019 as per
the allegation, the petitioners asked one of the employee in the
school as to whether he has brought Rs. 1,00,000/-. On replying
in negative, the accused Nos. 1 and 2 put a sharp weapon named
'Katti' on the neck of the employee and threatened that they will
cut his body in two pieces. It is thereafter, the complainant went
to Police Station Markhel, however, the Police refused to register
an offence. The application was also made to Deputy
Superintendent of Police, Nanded. Office of Deputy
Superintendent of Police told the complainant to approach
Markhel Police Station again. However, still no complaint was
taken. The complainant, therefore, filed an application before the
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learned J.M.F.C. The learned J.M.F.C. on recording verification
statement of the complainant and witnesses issued process against
the accused persons.
5. So far as facts in Criminal Writ Petition No. 731/2024 are
concerned, the complainant approached the learned J.M.F.C. by
filing Criminal Miscellaneous Application. It is stated in the
compliant that, sister of petitioner No. 1 married to son of the
complainant. The marriage took place on 21.05.2010. On
08.03.2018 there was incident of fire in the bedroom of the sister
of present petitioner No. 1 and she died in the said incident. It is
alleged that, since sister of accused No. 1 died, the accused
persons started blackmailing the complainant and demanded the
land of Ashram school with Ashram school. There was a meeting
of people. In the said meeting, the complainant flatly refused to
give the school as it belongs to a Trust. On this, the accused
persons lodged the FIR with the Police Station against the
complainant, his sons and wife. It is further alleged that,
thereafter, the accused persons started demanding an amount of
Rs. 1,00,000/- as ransom and further to shift the school to some
other place, otherwise they will abduct the students from the
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school. It is alleged that, on 02.02.2019 they threatened one of
the employees. Therefore, again complaint was tried to be lodged
with the Police and the Deputy Superintendent of Police, Nanded.
However, since no cognizance was taken and no offence was
registered, an application is filed praying for directions under
Section 156 (3) of the Cr.P.C. for the offences punishable under
Sections 383, 307, 511, 506 (2) r/w Section 34 of the I.P.C. The
learned Magistrate directed to put up the complaint for
verification of complainant and witnesses and thereafter issued
process. Thus, these orders are challenged in these petitions.
6. The learned A.P.P. and learned advocate for respondent No. 2
raised preliminary objection of maintainability of the petitions in
view of availability of alternative remedy of filing of a revision.
7. On the point of maintainability, the learned advocate Mr.
Reddy for the petitioners submits that, alternative remedy is not
an absolute bar. He further vehemently argued that, both the
complaints are imaginary. It is the case that, the sister of accused
No. 1 died in the house of son of the complainant and since they
filed a complaint the complainant is trying to bring pressure by
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giving a concocted story before the learned J.M.F.C.
8. The accused No. 1 has lodged the FIR for the offences
punishable under Sections 306, 304-B r/w Section 34 of the I.P.C.
wherein, the complainant, his wife and his two sons are shown as
accused. In that connection, the complainant could not get the
bail. That FIR was lodged on 25.03.2018 whereas, the present
application is filed in the year 2021. The story even if taken as it
is, it clearly shows that the entire story is imaginary and without
any substance. Son of the complainant and complainant had tried
to seek anticipatory bail, however, the same was rejected by this
Court. Even the Hon'ble Supreme Court rejected the S.L.P. by
order dated 23.07.2018. He further submits that, it is only to
come out of earlier complaint the complainant has filed the
present complaints. Continuance of proceeding under such
circumstances would be an abuse of process of law.
9. In Criminal Writ Petition No. 731/2024 the learned advocate
Mr. Reddy for the petitioners submits that, initially, Police was
directed to submit the report under Section 200 of the Cr.P.C. The
Police had conducted investigation. They submitted report of 'B'
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summary dated 05.08.2021 and it is submitted that, no material is
found and no case was made out under Sections 457, 380 of the
I.P.C. He submits that, still the learned J.M.F.C. issued process.
The order appears to be passed mechanically. There is nothing on
record to show as to why 'B' summary report is not accepted. The
Police found that, the complaint is lodged only due to enmity
between the parties.
10. The learned A.P.P. and learned advocate for respondent No. 2
vehemently opposed the petitions. They submit that, in the
present cases, clearly a case is made out for issuance of process.
The complaint by accused No. 1 was filed in the year 2018. It is
thereafter, in the year 2021 now the complaint is filed. Had it
only been by way of retaliation, it could have been filed long back.
It is a matter of fact that, after death of sister, the accused persons
started harassing the complainant and the employees of the
school. There was demand that they should give the school and
the land of the school to the petitioners. Clearly, averments are
made in the complaint. An order passed by the learned Magistrate
in both these cases clearly show application of mind. The learned
Magistrate has not issued process mechanically, but has recorded
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the verification. An order is well reasoned order wherein, the
learned Magistrate has recorded the reasons for issuing process
and the material on the basis of which he is satisfied about the
existence of prima facie case. They both, therefore, pray for
rejection of writ petitions.
11. So far as alternative remedy is concerned, the learned
advocate for the respondent No. 2 has placed reliance on the
judgment in the case of Ashok Mehta Vs. State of Maharashtra and
others reported in 2005 Cri. L.J. 3321. In the said case, this Court
at Nagpur held that, order of learned Magistrate issuing process is
not an interlocutory order and thus, the writ petition is not
maintainable.
12. The learned advocate for the petitioners relies upon the
judgment in the case of Kirti Kumar Jayantilal Patel and Ors. Vs.
State of Maharashtra reported in AIR Online 2023 BOM 355. In
the said case it is held that, the writ petition can be directly
entertained by this Court wherein, challenge is raised to an order
of issuance of process. In the said case, it is found that the facts
were undisputed. It was the case that, a complaint was lodged
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against the manufacturer of drug as the product manufactured
was found to be not of standard quality. In that case, the standard
itself was prescribed after the manufacturing of the drug. In that
view of the matter this Court had entertained the writ petition.
13. In the present petitions, the facts are disputed. The
evidence is required to be appreciated and for that reason this
Court holds that it was necessary for the petitioners to approach
the Revisional Court first. So far as submission that, no offence is
made out under Section 390, the Court held that even taking the
allegations as it is, no case was made out. On that the S.L.P. was
allowed and the complaint was quashed. Presently, this Court
does not find, no ingredients are made out of the offences.
14. Further judgment relies upon by the petitioners is from High
Court of Karnataka in Criminal Petition No. 8922/2017 in the case
of Sri Nagaraj Rao C.H., S/o C. H. Rao Vs. State by its S.P.P.
Bangalore and another. In the said petition it is held that the
learned Magistrate ought to have applied his mind and to have
passed an order by giving proper reasoning. In that case, the
Police had filed a 'B' summary report. The complainant had filed a
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protest petition. There was evidence of the complainant taken. It
is in that view the Court held that reasoning was required to be
given.
15. Further case is relied upon by the petitioners is in the case of
Issac Isanga Musumba Vs. State of Maharashtra reported in AIR
Online 2013 SC 231. In the said case, it is held that, unless the
property is delivered to accused person pursuant to threat, no
offence of extortion can be said to have been made out. In the
said complaint, though there was allegation of threats given for
extortion, no amount was delivered by the complainant and in
that view it was held that, offence of extortion was not made out
under Section 383 of the I.P.C.
16. Coming to the present petitions, in both the complaints the
facts alleged are not in view of extortion. In Criminal Writ
Petition No. 733/2024, Cri. M. A. No. 105/2021 is concerned, it is
seen that the allegations are not only under Section 383, but
under Sections 307, 511, 506(2) r/w Section 34 of the I.P.C. From
the petition paper book it is seen that, verification of the
complainant is recorded. The order of the learned J.M.F.C. also
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shows that, he has applied his mind and it is only thereafter the
process is issued. Thus, on merits this Court finds that, no case is
made out calling for interference with the order impugned in
Criminal Writ Petition No. 733/2024.
17. So far as Criminal Writ Petition No. 731/2024 is concerned,
here also this Court finds that the complaint is lodged for the
offences punishable under Sections 457, 380, 506 r/w Section 34
of the I.P.C.
18. Looking to the order passed by the learned J.M.F.C. this
Court finds that, the learned J.M.F.C. while passing the order
considered the verification statement and the statements of other
witnesses and has gone through the papers on record. It is only
on that, an order is passed. Considering overall facts and the
material, this Court is of the opinion that, there are several
questions which need to be addressed on factual aspects involved
in the present petitions. The scope of interference under Article
227 of the Constitution of India is very limited. The interference
is permissible only if this Court comes to a conclusion by looking
to the contents of the complaint that no case is made out and the
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order passed by the learned Magistrate is without application of
mind. When the complaint makes out a case attracting the
ingredients of offence and when the learned Magistrate has passed
an order on getting himself satisfied on prima facie case, this
Court would not interfere with the order. Criminal Writ Petition
No. 731/2024, therefore, also deserves to be dismissed.
19. In view of the above, both the criminal writ petitions stand
dismissed. No order as to costs.
( KISHORE C. SANT, J. )
P.S.B.
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