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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.847 OF 2005

Shri.Saket Gore and Ors.

..Petitioners

Vs.

Shri.Aba Dhavalu Bagul

& Anr.

...Respondents

...

Mr.Shirish Gupte senior counsel with Mr.Prakash

Naik for Petitioners

Mr.D.P.Adsule, A.P.P. for the State

...

CORAM:

CORAM:

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

SMT.V.K.TAHILRAMANI,J.

SMT.V.K.TAHILRAMANI,J.

DATE

DATE

DATE : JUNE 6,2005

: JUNE 6,2005

: JUNE 6,2005

P.C.

P.C.

P.C.

1.

Heard

Mr.Shirish

Gupte,

the

learned

senior

counsel

with

Mr.Prakash

Naik

for

the

Petitioners

and Mr.D.P.Adsule, the learned A.P.P. for

respondent nos.1 and 2.

2.

The

petitioners

are

seeking

quashing

of

process

issued

under

Section

23(1)

and

33

of

the

Standards

of

Weights

and

Measures

(Enforcement)

Act,

1985,

by

the

learned

IInd

Jt.Judicial

Magistrate

F.C.

Nasik

in

Criminal

Case

No.

4293

of

2001.

The

said

applications

have

been

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preferred

before

the

Judicial

Magistrate

F.C.Nasik.

The

said

applications

have

not

yet

been

decided.

However,

in

view

of

the

decision

of

the

Apex

Court

in

the

case

of

Adalat

Prasad

Vs.

Adalat

Prasad

Vs.

Adalat

Prasad

Vs.

Rooplal

Rooplal

Rooplal

Jindal

and

Others

2004

(4)

Mh.L.J.

274

Jindal

and

Others

2004

(4)

Mh.L.J.

274

Jindal

and

Others

2004

(4)

Mh.L.J.

274,

the

learned

Magistrate

would

not

have

the

power

to

recall

the

process

and

hence,

there

is

no

question

of

the

said

applications

being

allowed.

It

is

in

these circumstances that the petitioners have

approached this Court.

3.

No

doubt

it

is

always

open

to

the

petitioners

to

approach

this

Court

under

Section

482

of

Code

of

Criminal

Procedure.

However,

in

my

opinion,

the

petitioners

have

an

efficacious

alternate

remedy

i.e.

of

preferring

a

revision

before

the

Sessions

court

against

the

order

of

the

Magistrate

issuing

process.

Hence,

I

expressed

the

view

that

it

would

be

more

appropriate

that

the

petitiners

should

prefer

revision

before

the

concerned

Sessions Court for quashing of the order issuing

process.

4.

On

expressing

this

opinion,

the

learned

counsel

for

the

petitioners

pointed

out

the

recent

decision

of

the

Supreme

Court

in

the

case

of

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Adalat

Adalat

Adalat

Prasad

Vs.

Rooplal

Jindal

and

others

2004

Prasad

Vs.

Rooplal

Jindal

and

others

2004

Prasad

Vs.

Rooplal

Jindal

and

others

2004

(4)

(4)

(4)

Mh.L.J.

274.

Mh.L.J.

274.

Mh.L.J.

274.

The

learned

counsel

has

submitted

that

in

the

said

decision,

it

is

observed

in

para

16

that

in

a

case

where

process

has

been

issued,

in

the

absence

of

any

review

power

or

inherent

power

with

the

subordinate

criminal

Courts,

the

remedy

lies

in

invoking

Section

482

of

Criminal

Procedure

Code.

Thus

the

learned

counsel

has

submitted

that

in

view

of

the

observations

of

the

Supreme

Court,

the

petitioners

have

rightly

approached

the

High

Court

for

relief

as both the lower Courts i.e. the Magistrate or

Sessions Court cannot grant relief.

5.

The

learned

counsel

has

also

placed

reliance

on

another

decision

of

the

Supreme

Court

in

the

case

of

Subramanium

Sethuraman

Vs.

State

of

Subramanium

Sethuraman

Vs.

State

of

Subramanium

Sethuraman

Vs.

State

of

Maharashtra

Maharashtra

Maharashtra

and