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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