Bombay High Court
Ajith More vs M/S. Sanjay Chemicals (India) Pvt. Lt on 17 September, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:38676
36-revn428-2019.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.428 OF 2019
Ajith More ... Applicant
V/s.
Sanjay Chemicals (India) Pvt. Ltd. ... Respondent
ATUL Mr. Jagdish Chaudhary with Mr. Ranvir Shekhawat i/by
GANESH
KULKARNI
Digitally signed by
Raj Legal for the applicant.
ATUL GANESH
KULKARNI
Date: 2025.09.17
18:37:16 +0530 Mrs. Kranti T. Hiwrale, APP for the State.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 17, 2025
P.C.:
1. By this revision application, the applicant, who was original
accused No.3, is challenging the Judgment and Order dated 24
October 2018 passed by the learned Sessions Court in Criminal
Revision No.263 of 2018. By the said order, the Sessions Court
allowed the revision filed by the original complainant in
proceedings under Section 138 of the Negotiable Instruments Act,
1881.
2. This Court, by order dated 9 October 2019, recorded the
presence of the Advocate appearing for respondent No.1. On that
date, the Advocate sought time to file a reply. This itself shows that
respondent No.1 was duly served with the present revision
application. However, despite service, none appeared on behalf of
respondent No.1 on the last occasion, and even today there is no
appearance. Hence, the matter is taken up for hearing on merits in
36-revn428-2019.doc
the absence of respondent No.1.
3. On perusal of the order dated 14 August 2014 passed by the
Metropolitan Magistrate, it is evident that while issuing process,
the Magistrate considered the status of the applicant as a partner
of accused No.1-firm. The Magistrate specifically recorded that the
Memorandum of Understanding, which subsequently formed the
basis of the Sessions Court order, was very much on record at the
stage of issuing process. Despite the existence of such material, the
Magistrate consciously chose to issue process only against accused
Nos.1 and 2 and not against the present applicant. This indicates
that the Magistrate had applied his mind to the material available
and had arrived at a judicial decision not to proceed against the
present applicant.
4. It is also significant that the complainant did not challenge
the order of issuance of process passed by the Magistrate. Instead,
the complainant moved an application before the Magistrate under
Section 319 of the Code of Criminal Procedure, 1973 and placed
on record a copy of the partnership deed to rope in the present
applicant. The Magistrate, by order dated 14 December 2017,
rejected this application by relying upon the Constitution Bench
judgment of the Supreme Court in Hardeep Singh vs. State of
Punjab (2014) 3 SCC 92. The Magistrate rightly held that once a
person has not been summoned, or has been discharged, no
proceedings can be commenced against him except by following
the specific procedure prescribed under Section 300(5) read with
Section 398 of the Code. Accordingly, the Magistrate directed the
complainant to take appropriate steps under law instead of
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invoking Section 319.
5. This order of the Magistrate was challenged by the
complainant before the Revisional Court in Criminal Revision
No.263 of 2018. The Revisional Court, while relying on the
judgment of the Supreme Court in Municipal Corporation of Delhi
vs. Ram Kishan (AIR 1983 SC 67), held that the Magistrate had
committed an error in insisting upon recourse to Section 300(5)
read with Section 398 of the Code. The Revisional Court,
therefore, allowed the revision and directed issuance of process
against the present applicant.
6. The learned Advocate for the applicant has rightly invited
my attention to the authoritative pronouncement in Hardeep Singh
(supra). The Constitution Bench, after considering earlier case law
including Ram Kishan, has in paragraph 117.6 of its judgment
clarified the legal position. It has been categorically held that
where a person has been discharged or where process has not been
issued against him, then for the purpose of adding him as an
accused, the procedure contemplated under Section 300(5) read
with Section 398 of the Code must be followed. This is a binding
pronouncement by a larger Bench of the Supreme Court and
therefore prevails over the interpretation placed by the Revisional
Court.
7. At this stage, it is necessary to emphasize that judicial
discipline requires that when two judgments of the Supreme Court
appear to deal with a similar issue, the decision of the larger Bench
must be followed. The decision in Ram Kishan was rendered by a
36-revn428-2019.doc
smaller Bench, whereas Hardeep Singh was decided by a
Constitution Bench of five Judges. Hence, the latter lays down the
binding law under Article 141 of the Constitution. Once the
Constitution Bench has clarified the position of law, the Revisional
Court was duty bound to apply it in preference to Ram Kishan.
Failure to do so amounts to an error apparent on the face of the
record.
8. In my considered opinion, therefore, the Revisional Court
was not justified in interfering with the well-reasoned order of the
Metropolitan Magistrate. The reliance placed solely on Ram Kishan
by the Revisional Court without noticing the subsequent
Constitution Bench in Hardeep Singh has resulted in an erroneous
conclusion. The impugned order dated 24 October 2018, therefore,
cannot be sustained in law.
9. Accordingly, the order dated 24 October 2018 passed by the
Sessions Court in Criminal Revision No.263 of 2018 is quashed
and set aside. The order dated 14 December 2017 passed by the
learned Metropolitan Magistrate is restored.
10. The criminal revision application stands disposed of in the
above terms.
(AMIT BORKAR, J.)
