Saturday, 28 December 2013

Magistrate has no power to review or re­consider question of issue of process



 It is well settled that the learned Magistrate, having 
issued   process,   would   have   no   power   to   review   or   re­consider   the 
question of issue of process.   The legal position has been made clear by 
the pronouncement of the Supreme Court in the case of Adalat Prasad  
V/s  Rooplal Jindal and others  reported in 2004 (4) Mh.L.J. ­ 274. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              BENCH AT AURANGABAD
   CRIMINAL WRIT PETITION NO. 1077 OF 2011
Namdeo S/o Dagdu Londhe

V E R S U S
                             ....
Phulabai W/o Tanaji Nanware

                 .........................  

CORAM :  ABHAY M. THIPSAY, J. 
DATE  OF JUDGMENT :  05/09/2013
Citation; 2013 AllMR(cri)4355

' Rule ' as against the respondent No. 2.  
2. It is not necessary to hear the respondent No. 1.  
3. By consent, Rule issued to the respondent No. 2 is made 
1. 
The   respondent   No.   1   had   filed   a   complaint   against   the 
4.
ig
returnable forthwith.    By consent, heard finally forthwith.
petitioner and two (2) others, alleging commission of various offences 
by them.  
5.
  The   learned   Judicial   Magistrate   First   Class,   Aashti,   after 
offence punishable U/ss 323, 342, 504 of the Indian Penal Code [ For 
short, I.P.C. ' ] read with Section 34 of   I.P.C. against all the accused, 
including the present petitioner.  
examining the respondent No. 1 on oath, issued process in respect of the 
6.
Aggrieved   by   the   order   issuing   process   against   him,   the 
petitioner approached the Court of Sessions by making an application 
for revision.   The learned Additional Sessions Judge heard the revision 
and disposed of the same by the following order :­ 

Criminal Revision is partly allowed as under :  
Revision   petitioner   is   at   liberty   to   move  
learned   Judicial   Magistrate   First   Class,   Ashti   for  
passing   appropriate   order   after   hearing   revision  
petitioner against the order of issue process passed  
by the Judicial Magistrate First Class against him.  
Inform   the   learned   Judicial   Magistrate   First  
It is this order that has been challenged by the petitioner by 

7.
Class accordingly. "
filing   the   present   Writ   Petition   under   Articles   226   and   227   of   the 
Constitution of India.  
The order passed by the learned Additional Sessions Judge 
8.
is patently illegal.   The learned counsel for the petitioner has drawn my 
attention   to   the   points   of   determination   as   framed   by   the   learned 
Additional Sessions Judge and the findings thereon recorded by him.   It 
appears that the Additional Sessions Judge, though was of the view that 
the   issuance  of  process   by  the   Magistrate  was   erroneous,  was  of  the 
further view that the petitioner should have approached the Magistrate 
himself, for the redressal of his grievance.  
In para No. 9 of the order, the learned Additional Sessions 
Judge has observed as follows, 

Revision petitioner has challenged this order  
in Criminal revision without knocking the door of  
learned Judicial Magistrate First Class, by putting  
aforementioned   evidence   before   him,   therefore,   in  
my   opinion,   it   would   be   proper   for   revision  
petitioner   to   knock   the   door   of   learned   Judicial  
Magistrate   First   Class   and   obtain   appropriate  
order.     In view of above discussion, I am of the  
opinion that matter is required to send back to the  
trial Court of Judicial Magistrate First Class, Ashti  

for deciding afresh on the point of issue of process  
under Sections 323, 342, 504 read with Sec. 34 of  
9.
the I.P.C. as against present revision petitioner. "
The order passed by the learned Additional Sessions Judge 
is contrary to law.  It is well settled that the learned Magistrate, having 
issued   process,   would   have   no   power   to   review   or   re­consider   the 
question of issue of process.   The legal position has been made clear by 
the pronouncement of the Supreme Court in the case of Adalat Prasad  
V/s  Rooplal Jindal and others  reported in 2004 (4) Mh.L.J. ­ 274. 
10.
The learned Additional Sessions Judge seems to be unaware 
of this legal position and was apparently of the view that the Magistrate 
could   have   cancelled   his   own   order   issuing   process.       As   the   order 
passed  by   the   Additional  Sessions   Judge  is   patently   illegal,   the  same 
needs to be interfered with.  

The   order   dated   07/09/2010   passed   by   the   learned 
Additional Sessions Judge is set aside.  
The   Revision   Application   be   restored   to   the   file   of   the 
learned   Additional   Sessions   Judge,   who   shall,   after   giving   an 
opportunity  to the parties  of being heard, decide  the  same afresh on 
It   is   expressly   made   clear   that   no   opinion   has   been 

12.
merits and in accordance with law.  
expressed by this Court as to whether the order issuing process suffers 
from any illegality or impropriety or is liable to be interfered with.   It 
would be for the learned Additional Sessions Judge to consider the same 
in accordance with law.  
13.
The learned Additional Sessions Judge shall dispose of the 
revision application within a period of three (3) months from the date of 
receipt of this order.  
14.
The Writ Petition is allowed in the aforesaid terms.   Rule is 
made absolute accordingly.  
      
       
   [ ABHAY M. THIPSAY, J. ]



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