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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.678 OF 2005

IN

CRIMINAL CASE NO. 1562/S/2002

IN

CRIMINAL CASE MISC. /270/2000

Dr.M.B.Rawate ..Petitioner

Vs.

The State of Maharashtra

and Ors. ..Respondents

...

Petitioner in person present

Mrs.A.S.Pai A.P.P. for the State

Respondent no.2-Shri.Shankar Rao Yesare

in person

...

CORAM: SMT.V.K.TAHILRAMANI,J.

CORAM: SMT.V.K.TAHILRAMANI,J.

CORAM: SMT.V.K.TAHILRAMANI,J.

DATE : DECEMBER 5, 2007

DATE : DECEMBER 5, 2007

DATE : DECEMBER 5, 2007

P.C.

P.C.

P.C.

1. Heard the petitioner in person, the learned

A.P.P. for the State and the Respondent no.2 who

is present in person.

2. The petitioner-original complainant had filed

complaint against Respondent No.2 being Criminal

Misc. Case No. 270 of 2000. The said complaint

is under Sections 213, 217, 218, 219, 120-B r.w.

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109 and 34 r.w. 114 of the IPC. In the said case,

the process came to be issued by the learned

Magistrate under Sections 213, 217 and 218 of IPC.

Thereafter, respondent no.2 preferred application

before the learned Magistrate for recall of

process. By order dated 5.4.2004 the learned

Magistrate recalled the process. Being aggrieved

by this order, the present petition has been

preferred.

3. The petitioner has submitted that in view of

the decision of the Supreme Court by a Bench of

three Judges in the case of Adalat Prasad V.

Adalat Prasad V.

Adalat Prasad V.

Rooplal Jindal, 2004(2) Bom.C.R. (Cri.) (S.C.)

Rooplal Jindal, 2004(2) Bom.C.R. (Cri.) (S.C.)

Rooplal Jindal, 2004(2) Bom.C.R. (Cri.) (S.C.)

857: 2004(4) Mh.L.J. 274

857: 2004(4) Mh.L.J. 274

857: 2004(4) Mh.L.J. 274, the Magistrate has no

power to recall the process. He further submitted

that in view of the said decision, the Magistrate

has no powers to review his orders and in such

case, the process issued by the Magistrate, could

not have been recalled by the learned Magistrate

and the remedy open to the accused was that he

should have approached the higher forum.

4. No doubt, in the case of Adalat Prasad (supra)

Adalat Prasad (supra)

Adalat Prasad (supra),

it has been held by the Supreme Court that

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Magistrate cannot review his order and thus cannot

recall the process issued by him. However, it is

seen that decision in the case of Adalat Prasad

Adalat Prasad

Adalat Prasad is

dated 25th August, 2004 whereas, in the present