It may be noted that the private complainant, who was
unaware of the adjourned dates i.e. 25.6.1992 and 1.7.1992
because he was informed the adjourned date as 17.8.1992, while
before that adjourned date the complaint was wrongly dismissed.
Thus, there was no order of either discharge or acquittal after
hearing the complainant. This appears to have been considered
by the learned Judicial Magistrate, First Class, Udgir who allowed
application of the private complainant and decided to restore the
complaint. The contention that in view of the bar under Section
362 of Cr.P.C. the Magistrate could not have restored the
complaint, is not acceptable in the facts and circumstances of the
present case, particularly when the complainant was informed the
adjourned date as 17.8.1992While before that adjourned date
informed to the complainant, no order to the prejudice of the
complainant in his absence could have been passed. It is always
open for the Court to rectify clerical or arithmetical error in its
order, even in view of Section 362 of Cr.P.C. The very existence of
the court is to ensure that justice must not only be done but must
be seen to have been done.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.103 OF 2001
Dinkar s/o Suryabhanrao Shinde,
VERSUS
1. The State of Maharashtra,
CORAM : A.P. BHANGALE, J
DATE : 13th June 2013
Citation; 2013 AllMR(cri)2919
1. The petitioner, who has filed this petition under Section 482
of Cr.P.C. and under Article 227 of the Constitution of India
questioning the order of issuance of process dated 19.8.1992
passed by learned Judicial Magistrate, First Class, Udgir in Regular
Criminal Case No.226/1988, being a private complaint filed by
respondent No.2 - Kashiram Sangram Hallale. According to
learned Advocate for the petitioner, the process under Section
302, 201, 504, 506 Part I, 109 and 498-A read with Section 34 of
::: Downloaded on - 21/12/2013 16:25:32 :::Bombay High Court
Cri.W.P.103/2001
2
Indian Penal Code ought not to have been issued as against the
petitioner. It is not in dispute that accused Nos.1 to 5 did not
challenge the impugned order of issuance of process. It is also
contended with reference to ruling in Hari Singh Mann vs.
Harbhajan Singh Bajwa and others, reported in 2001 (1)
Mh.L.J.465 that once the complaint was dismissed for default, it
could not have been reviewed in view of the bar under Section
362 of Cr.P.C. Reference is also made in this regard to ruling in
Bindeshwari Prasad Singh vs. Kali Singh, reported in AIR
1977 SUPREME COURT 2432 contending that second complaint
can lie only on new facts or even on previous facts only if special
case is made out.
2. It may be noted that the private complainant, who was
unaware of the adjourned dates i.e. 25.6.1992 and 1.7.1992
because he was informed the adjourned date as 17.8.1992, while
before that adjourned date the complaint was wrongly dismissed.
Thus, there was no order of either discharge or acquittal after
hearing the complainant. This appears to have been considered
by the learned Judicial Magistrate, First Class, Udgir who allowed
application of the private complainant and decided to restore the
complaint. The contention that in view of the bar under Section
362 of Cr.P.C. the Magistrate could not have restored the
complaint, is not acceptable in the facts and circumstances of the
present case, particularly when the complainant was informed the
adjourned date as 17.8.1992. While before that adjourned date
informed to the complainant, no order to the prejudice of the
complainant in his absence could have been passed. It is always
open for the Court to rectify clerical or arithmetical error in its
order, even in view of Section 362 of Cr.P.C. The very existence of
the court is to ensure that justice must not only be done but must
be seen to have been done. Therefore, in my opinion, no fault can
be found with the learned Magistrate who chose to rectify his own
order on the ground that the date adjourned was informed as
17.8.1992 to the complainant and before that adjourned date and
in the absence of the complainant no order to the prejudice of
complainant could have been passed.
3. The next contention is that it was the case of suicide and
not of murder and the accusation made against the present
petitioner relates to performance of his duties as Police Inspector
and, therefore, without valid sanction under Section 197 of
Cr.P.C., the petitioner cannot be prosecuted. Learned A.P.P. is not
in a position to dispute his proposition that prior sanction of the
competent authority is necessary to prosecute the petitioner, as
accusations are made in respect of performance of his duties as
Police Inspector or alleged failure to perform his duties according
to law. Learned Advocate for the petitioner made reference to
ruling in Rizwan Ahmed Javed Shaikh and others vs. Jammal
Patel and others, reported in AIR 2001 SUPREME COURT
2198. In para 15 of the said ruling the test applied was as to
whether act done by a public Officer, as alleged to have
constituted an offence was done by him while acting in his official
capacity though what he did was neither his duty nor his right to
do as such public officer. Under these circumstances, benefit or
protection under Section 197 (2) of Cr.P.C. would be available to
the present petitioner, who was Police Circle Inspector at the
relevant time. Reference is also made to the ruling in Maruti
Ramchandra Dawane vs. State of Maharashtra, reported in
1998 (2) Bom.Cr.C.460 on the point of requisite previous
sanction by the competent authority to prosecute a public
servant.
4. Hearing these submissions, I think that the prosecution as
against the present petitioner cannot proceed further without
insisting upon valid and legal sanction order, as contemplated
under Section 197 of Cr.P.C. Considering the seriousness of the
accusation in the impugned order by which process was issued, it
is desirable that such prosecution, though lodged at the instance
of private person ought to be taken to its logical end according to
law. In normal course, no roadblocks can be allowed to be
created in respect of prosecution for serious offences like murder
etc. Therefore, I am not inclined to disturb the impugned order,
except with a qualification that as against the present petitioner,
committing Magistrate of trial would insist upon previous sanction
from the competent authority to prosecute the present petitioner
on the ground that he was acting as Police Inspector at the
relevant time for alleged acts or omissions attributed to him or
which were alleged to have been committed by the petitioner.
5. With these observations, petition stands disposed of. Rule
discharged.
( A.P. BHANGALE, J.)
Print Page
unaware of the adjourned dates i.e. 25.6.1992 and 1.7.1992
because he was informed the adjourned date as 17.8.1992, while
before that adjourned date the complaint was wrongly dismissed.
Thus, there was no order of either discharge or acquittal after
hearing the complainant. This appears to have been considered
by the learned Judicial Magistrate, First Class, Udgir who allowed
application of the private complainant and decided to restore the
complaint. The contention that in view of the bar under Section
362 of Cr.P.C. the Magistrate could not have restored the
complaint, is not acceptable in the facts and circumstances of the
present case, particularly when the complainant was informed the
adjourned date as 17.8.1992While before that adjourned date
informed to the complainant, no order to the prejudice of the
complainant in his absence could have been passed. It is always
open for the Court to rectify clerical or arithmetical error in its
order, even in view of Section 362 of Cr.P.C. The very existence of
the court is to ensure that justice must not only be done but must
be seen to have been done.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.103 OF 2001
Dinkar s/o Suryabhanrao Shinde,
VERSUS
1. The State of Maharashtra,
CORAM : A.P. BHANGALE, J
DATE : 13th June 2013
Citation; 2013 AllMR(cri)2919
1. The petitioner, who has filed this petition under Section 482
of Cr.P.C. and under Article 227 of the Constitution of India
questioning the order of issuance of process dated 19.8.1992
passed by learned Judicial Magistrate, First Class, Udgir in Regular
Criminal Case No.226/1988, being a private complaint filed by
respondent No.2 - Kashiram Sangram Hallale. According to
learned Advocate for the petitioner, the process under Section
302, 201, 504, 506 Part I, 109 and 498-A read with Section 34 of
::: Downloaded on - 21/12/2013 16:25:32 :::Bombay High Court
Cri.W.P.103/2001
2
Indian Penal Code ought not to have been issued as against the
petitioner. It is not in dispute that accused Nos.1 to 5 did not
challenge the impugned order of issuance of process. It is also
contended with reference to ruling in Hari Singh Mann vs.
Harbhajan Singh Bajwa and others, reported in 2001 (1)
Mh.L.J.465 that once the complaint was dismissed for default, it
could not have been reviewed in view of the bar under Section
362 of Cr.P.C. Reference is also made in this regard to ruling in
Bindeshwari Prasad Singh vs. Kali Singh, reported in AIR
1977 SUPREME COURT 2432 contending that second complaint
can lie only on new facts or even on previous facts only if special
case is made out.
2. It may be noted that the private complainant, who was
unaware of the adjourned dates i.e. 25.6.1992 and 1.7.1992
because he was informed the adjourned date as 17.8.1992, while
before that adjourned date the complaint was wrongly dismissed.
Thus, there was no order of either discharge or acquittal after
hearing the complainant. This appears to have been considered
by the learned Judicial Magistrate, First Class, Udgir who allowed
application of the private complainant and decided to restore the
complaint. The contention that in view of the bar under Section
362 of Cr.P.C. the Magistrate could not have restored the
complaint, is not acceptable in the facts and circumstances of the
present case, particularly when the complainant was informed the
adjourned date as 17.8.1992. While before that adjourned date
informed to the complainant, no order to the prejudice of the
complainant in his absence could have been passed. It is always
open for the Court to rectify clerical or arithmetical error in its
order, even in view of Section 362 of Cr.P.C. The very existence of
the court is to ensure that justice must not only be done but must
be seen to have been done. Therefore, in my opinion, no fault can
be found with the learned Magistrate who chose to rectify his own
order on the ground that the date adjourned was informed as
17.8.1992 to the complainant and before that adjourned date and
in the absence of the complainant no order to the prejudice of
complainant could have been passed.
3. The next contention is that it was the case of suicide and
not of murder and the accusation made against the present
petitioner relates to performance of his duties as Police Inspector
and, therefore, without valid sanction under Section 197 of
Cr.P.C., the petitioner cannot be prosecuted. Learned A.P.P. is not
in a position to dispute his proposition that prior sanction of the
competent authority is necessary to prosecute the petitioner, as
accusations are made in respect of performance of his duties as
Police Inspector or alleged failure to perform his duties according
to law. Learned Advocate for the petitioner made reference to
ruling in Rizwan Ahmed Javed Shaikh and others vs. Jammal
Patel and others, reported in AIR 2001 SUPREME COURT
2198. In para 15 of the said ruling the test applied was as to
whether act done by a public Officer, as alleged to have
constituted an offence was done by him while acting in his official
capacity though what he did was neither his duty nor his right to
do as such public officer. Under these circumstances, benefit or
protection under Section 197 (2) of Cr.P.C. would be available to
the present petitioner, who was Police Circle Inspector at the
relevant time. Reference is also made to the ruling in Maruti
Ramchandra Dawane vs. State of Maharashtra, reported in
1998 (2) Bom.Cr.C.460 on the point of requisite previous
sanction by the competent authority to prosecute a public
servant.
4. Hearing these submissions, I think that the prosecution as
against the present petitioner cannot proceed further without
insisting upon valid and legal sanction order, as contemplated
under Section 197 of Cr.P.C. Considering the seriousness of the
accusation in the impugned order by which process was issued, it
is desirable that such prosecution, though lodged at the instance
of private person ought to be taken to its logical end according to
law. In normal course, no roadblocks can be allowed to be
created in respect of prosecution for serious offences like murder
etc. Therefore, I am not inclined to disturb the impugned order,
except with a qualification that as against the present petitioner,
committing Magistrate of trial would insist upon previous sanction
from the competent authority to prosecute the present petitioner
on the ground that he was acting as Police Inspector at the
relevant time for alleged acts or omissions attributed to him or
which were alleged to have been committed by the petitioner.
5. With these observations, petition stands disposed of. Rule
discharged.
( A.P. BHANGALE, J.)
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